Date: 20090611
Docket: IMM-5190-08
Citation: 2009 FC 600
Ottawa, Ontario, June11, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MIGUEL
ANGEL OROZCO TOVAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated November 10, 2008, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter be referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
Miguel
Angel Orozco Tovar, (the applicant) is a citizen of Colombia from Bogota. He is
married with three children who remain in Bogota. The
applicant worked on his family’s ranch in Planadas, Tolima which is an area
that is controlled by the Revolutionary Armed Forces of Colombia (FARC) as well
as other right wing paramilitary units or paramilitaries. As is typical in
areas controlled by the FARC, the applicant’s father paid a war tax or vacuna
to the FARC for many years.
[4]
In
2004, the applicant received a note addressed to his brother’s store stating
that the applicant was sympathizing with the paramilitaries and spying on the
FARC. The FARC claimed to have seen the applicant paragliding with a friend, a
major in the national police, a few days earlier. The family then made efforts
to persuade the FARC that they were not working against them. Although
unsuccessful, the father tried to persuade his own FARC contacts to help. The
applicant filed a denunciation to the National Attorney General’s Officer and
went to the Ombudsman’s Office. In the end, the applicant was advised to be
careful, but beyond that, assistance was not available.
[5]
In
2006, the Columbian army appeared to be back in control of the farm area and
the applicant returned. While he was there the FARC came to the farm. Although
the applicant got away, the FARC allegedly took 22 cows in retaliation.
[6]
The
applicant left Colombia in September 2006 and spent time living in Chile, Argentina,
and Peru but
ultimately returned to Bogota for two months where he obtained a false Canadian
passport before coming to Canada on December 2, 2006.
Board’s Decision
[7] In
rendering its decision, the Board found that the applicant was not a Convention
refugee “as he does not have a well-founded fear of persecution for a
Convention ground in Colombia”. Further, the Board
did not find that the applicant was in need of protection in that his removal
to Colombia would not
subject him personally to a risk to life or a risk of cruel and unusual
treatment or punishment or a danger of torture.
[8]
The
Board stated that the determinative issue was the applicant’s credibility.
[9]
The
Board did not find it plausible that the applicant would be as brazen as to
paraglide over known FARC territory with a major in the National Police. As a
consequence, the Board rejected this aspect of the applicant’s testimony as
false.
[10]
In
any case, the Board stated that even if the paragliding incident was true, it
is odd that despite his alleged fear he remained in nearby Ibague from March
to July 2004, before moving to Bogota with his family. The Board found it
implausible that the applicant was able to hide in the house for that time
given the FARC’s tactics. The Board believed that the FARC would have known of the
applicant’s house and gone there and searched it, if they were in fact looking
for him. Accordingly, the Board finds it improbable that the FARC did not track
down the applicant and his family in Bogota either. The Board
suggests that if the applicant was truly a target then they would have had
contact with either the applicant in the two and a half years following the
alleged condemnation or the wife and their children in the time that he was
away in Chile, Argentina and Peru.
[11]
The
applicant’s return from his travels did not illicit any more interest at that
time which was curious to the Board. The Board stated that if “he truly had
been declared a military target” they would have been watching his wife and
children and become aware of his return to his family in Bogota.
[12]
The
Board noted that the FARC often takes severe quick action against their targets
which was inconsistent with the story relayed by the applicant and which was rejected
on a balance of probabilities.
[13]
The
Board also found it unusual that the father was able to remain on the farm
without threats from the FARC and even sought to get their assistance in
removing the condemnation on his son’s name. The Board is surprised that the
FARC’s reaction was not to brand the father a traitor, kidnap, or attack the
family, in retaliation for the son’s alleged spying on them in keeping with the
information from the National Documentation Package about the violence
committed by the FARC.
[14]
The
Board also rejected the oral testimony of a connection between the applicant’s
uncle’s murder by unknown assailants because the event was “four years from the
time that [the applicant] was alleged to have been declared a military target”
making it unlikely that the two incidents were related.
[15]
Finally,
the Board finds that the applicant’s conviction of possession of opium in 1995
further undermines “a picture of general untrustworthiness”.
Issues
[16]
The
applicant submitted the following issues for consideration:
1. Did the Board base
its decision on an erroneous finding of fact that it made in a perverse or
capricious manner, or without regard to the material before it? Specifically:
a. Was the Board’s
finding that the applicant’s father “lives without retribution from the FARC”,
as of the date of the hearing made in a perverse or capricious manner, or
without regard to the material before it?
b. Was the Board’s
implied finding that the applicant and his family experienced no hardship or
risk of “retribution from the FARC” made in a perverse or capricious manner, or
without regard to the material before it?
c. Were the
Board’s findings with respect to probably actions of the FARC in the
circumstances as related by the applicant made in a perverse or capricious
manner, or without regard to the material before it?
d. Was the Board’s
finding concerning the applicant’s general credibility as inferred from the
fact of a prior criminal conviction made in a perverse or capricious manner, or
without regard to the material before it?
2. Did the Board fail
to observe a principle of natural justice, procedural fairness or other
procedure it was required by law to observe? Specifically:
a. Did the Board’s
failure to mention or consider in its reasons the facts and issues surrounding
the applicant’s application to the Canadian Consulate in Bogota prior to his
departure from his country constitute a failure to observe a principle of
natural justice, procedural fairness or other procedure it was required by law to
observe?
b. Did the Board’s
failure to mention or consider in its reasons the facts and issues surrounding
the matter of the applicant’s exclusion from refugee protection by reason of
criminality constitute a failure to observe a principle of natural justice,
procedural fairness or other procedure it was required by law to observe?
[17]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that the subjective fear of the applicant and the objective threat by
the FARC was implausible?
3. Did the Board err in
finding that the applicant’s prior criminal conviction compromised his general
credibility?
4. Did the Board err
when it failed to mention or consider the circumstances surrounding the applicant’s
application to the Canadian Consulate in Bogota prior to his departure from Colombia?
Applicant’s Submissions
[18]
The
applicant first addresses the issue of the factual findings of the Board
regarding the FARC. The applicant states that it is not the case that the
applicant’s father is not being threatened by the FARC. The father continues to
pay vacuna or war tax. It is by way of this on-going threatening “relationship”
that the father had contact with the FARC to the extent that he tried to get the
condemnation of his son removed.
[19]
The
applicant states that the Board “attributes greater powers to the FARC than the
guerrilla in Colombia possess in
reality”. Notwithstanding, the applicant submits that this has given him a
false sense of security and caused him to change his assessment of the risk he
was facing in his country. The applicant testified about the many precautions
he took while living in Bogota and the on-going struggle of his father to
manage the persecutory acts of the FARC.
[20]
Ultimately,
the applicant provided testimony for over four hours and the Board noted at the
end of the testimony that his answers to his questions were detailed and
consistent.
[21]
The
Board spent some time in the decision commenting on how the applicant’s
criminal conviction hurt his trustworthiness yet failed to mention that at the
conclusion of the hearing the Board found that the applicant was not excluded
from protection due to criminality but this was never referred to.
[22]
In
the decision, the Board did not mention the “one outstanding issue” that
delayed the final decision by the Board and warranted a post hearing
investigation, that being: the evidence that the applicant had sought
protection from Canadian authorities in Colombia before his
final departure to Canada. This evidence proves that the applicant did
have a subjective fear of being harmed by the FARC and as such sought
protection at the Canadian Consulate in Bogota.
[23]
The
applicant also submits that he did not fully realize the seriousness of the
situation he was in with the FARC until he came to Canada. He
testified that people become desensitized by the violence and threats in Colombia and that it
was only after removing himself from his situation that he keenly recognized
the danger of the situation.
Respondent’s Submissions
[24]
The
standard of review according to the respondent is reasonableness which was
recently reaffirmed by the Supreme Court of Canada in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12. Mr. Justice Rothstein,
concurring with the majority in Khosa above, also went on to say that
the level of deference indicated by paragraph 18.1(4)(d) of the Federal
Courts Act is such that “… courts are only to interfere in the most
egregious cases of erroneous fact finding”.
[25]
The
respondent stated that this Court accords no deference to the determination of
the content of the duty of procedural fairness according to the Federal Court
of Appeal in A.G. v. Sketchley, 2005 FCA 404.
[26]
The
respondent then turns to the factual findings of the Board. The Board’s finding
that the applicant’s father lived without fear because of the “alleged
transgressions” of the applicant was reasonable. Testimony given by the
applicant outlines that while the applicant’s father was having problems with the
FARC, the problems were often resolved with paying the fines that they imposed.
Therefore, the Board concluded that the contact the father was having with the
FARC did not constitute retribution but an on-going paying of vacuna to placate
the FARC. As part of that testimony, the applicant said that “[the FARC] don’t
hurt me indirectly” but also said that his brother was in hiding because he was
involved in the alleged incident.
[27]
The
respondent also disagreed that the Board’s findings on the applicant’s subjective
fear were unreasonable. The Board noted that despite the evidence that the FARC
could find anyone they wanted to, the applicant and his family remained at the
same address in Bogota for two years without being contacted even once
by the FARC. The applicant explained this as an attempt to “keep them isolated”
but the Board saw this explanation as unreasonable given the allegations of
fear.
[28]
The
respondent submits that the Board did not ignore the further explanation by the
applicant that he did not fully grasp how serious the danger he was in, until
he was living outside Colombia. This testimony, the
respondent submits, still raises the question as to why no one in his family
has been contacted by FARC and why “his family, now having a new found awareness
of the danger in Colombia, have not taken any further steps to protect
themselves from the FARC?”
[29]
The
respondent submits that the Board did not wrongly speculate on the FARC in
assessing an objective threat. The applicant states in his testimony that the
FARC is capable of finding the applicant and his family if they so desired and
the Board decided that by extension: if there was a genuine threat, the family
would have been located in Colombia.
[30]
The
findings on criminality are immaterial according to the respondent because they
did not affect the prior findings of the Board that the applicant’s fear was
not objectively established.
[31]
The
Board did not act unfairly when they failed to wait for an answer from the
Canadian Consulate in Bogota regarding an asylum claim of the
applicant. This evidence was immaterial because even if this is the case, the
problem remains of why the applicant remained in Bogota for two
years and why after he left, his family was never targeted. The respondent
submits that this evidence may speak to a subjective fear by the applicant but
does not prove that there is more than a mere possibility of persecution given
the other issues raised by the Board.
[32]
The
applicant’s issue with the raising of the exclusion issue is also immaterial.
The Board declared that exclusion was being “dropped” as an issue at the
conclusion of the hearing and there was no benefit for the applicant in having
mentioned it in the decision. The manner in which the Board raised the criminal
conviction was related to credibility and not exclusion as it is known in the immigration
context. The consideration made by the Board on the evidence was within their
decision making authority.
Analysis and Decision
[33]
Issue
1
What is the appropriate
standard of review?
In Dunsmuir
v. New Brunswick, 2008 SCC 9 the Supreme Court of Canada held at paragraph
62 that the first step in conducting a standard of review analysis is to
“ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of [deference] to be accorded with regard to a particular
category of question.”
[34]
This Court has applied a reasonableness standard of review to
determinations of credibility. (see Malveda v. Canada (Minister of Citizenship
and Immigration), 2008 FC 447; Khokhar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449; Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571; Arizaj v. Canada (Minister of Citizenship
and Immigration), 2008 FC 774).
[35]
In reviewing the Board’s decision using a standard of reasonableness,
the Court will consider “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 paragraph 47). Questions of
law such as a duty of fairness are reviewable on a standard of correctness as
are questions of procedural fairness (see Chretien v. Canada (Commission
of Enquiry into the Sponsorship Program and Advertising Activities, Gomery
Commission), [2008] F.C.J. No. 973).
[36]
Issue
2
Did the Board err in finding
that the subjective fear of the applicant and the objective threat by the FARC
was implausible?
I will first address the
findings on subjective fear. The Board found that the applicant’s claim of
subjective fear was not credible for two reasons. One, it was implausible that
the paragliding incidence would have happened in the first place given that the
applicant knew of the FARC presence in the area. Two, that if it is to be
assumed that the incident took place, the applicant did not provide an adequate
and reasonable explanation as to why he or his family were not found and
targeted in the two years following the alleged condemnation.
[37]
The
applicant in his submissions is essentially requesting a reweighing of the
evidence which I am not permitted to do. My authority on the conclusions drawn
by the Board is to find a reviewable issue only if it falls outside a range of
acceptable outcomes (see Dunsmuir above). In this case, I find that it
does not. I acknowledge that there are problems inherent in the Board making
assumptions about the FARC and how they may or may not act without referring to
evidence. They relied on the applicant’s evidence on the FARC given in his
testimony but concluded differently than the applicant. The applicant when
asking why the FARC singled him out stated, “Because they found me accompanied
by the police major gliding over their area”. Given all the evidence, the
finding of the Board is one of the reasonable findings that could have been
made.
[38]
In
relation to the objective threat of the FARC, again this Court is being asked
to reweigh evidence which it is not authorized to do (see Kwizera v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1261 (CanLII)). The applicant’s
submissions that the Board wrongly speculated on the FARC are understandable.
However, as I found above, the conclusions were not outside a range of
acceptable outcomes given the evidence. Speculations can also be called
inferences, which the Board is required to make in assessing the evidence.
Accordingly, I am of the view that judicial review cannot be granted on this
ground.
[39]
Issue
3
Did the Board err in finding
that the applicant’s prior criminal conviction compromised his general
credibility?
I find that the Board’s
treatment of the applicant’s prior criminal conviction was within the authority
of the Board. Although the Board did not recite the narrative surrounding the
conviction, he is not obliged to refer to every piece of evidence (see Tong
v. Canada (Minister of
Citizenship and Immigration), 1998 CanLII 8354 (F.C.)). And, if
the criminal conviction had played a greater role in the credibility findings,
then perhaps greater scrutiny would be warranted. I would therefore not allow
judicial review on this ground.
[40]
Issue
4
Did the Board err when it
failed to mention or consider the circumstances surrounding the applicant’s
application to the Canadian Consulate in Bogota prior to his
departure from Colombia?
In 2004, after receiving a note
from the FARC, the applicant submitted it to the Canadian Embassy in Bogota for the
purpose of a refugee claim. At the end of the applicant’s hearing, the Board
gave the RPO two months to obtain proof of the filing of the note with the
Canadian Embassy. In its decision, the Board member made no mention of whether
anything was obtained from the Canadian Embassy. Credibility was the deciding
issue in this case and whether the applicant went to the Embassy could be
important in the assessment of his credibility. It is up to the Board to decide
this point. The Board at the hearing, stated that there still was one
outstanding issue, namely proof of the applicant going to the Canadian Embassy
with the note.
[41]
In
my opinion, the Board’s failure to mention whether it received any evidence
from the Canadian Embassy or whether it considered it in its determination of
credibility is a reviewable error. The decision of the Board must be set aside
and the matter remitted to a different panel of the Board for redetermination.
[42]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[43]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual residence
and is unable or, by reason of that fear, unwilling to return to that
country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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