Date: 20071211
Docket: IMM-35-07
Citation: 2007 FC 1298
Ottawa, Ontario, December
11, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LUIS EDUARDO CASTILLO NAAR,
DEVIS ROCIO SANTAMARIA AMARIS and
ANDREA CAROLINA CASTILLO SANTAMARIA
Applicants
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
the decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 14, 2006, which found that the applicants
were neither Convention refugees nor persons in need of protection.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a newly constituted panel of the Board for re-determination.
Background
[3]
Luis
Eduardo Castillo Naar, Devis Rocio Santamaria Amaris and their minor child,
Andrea Carolina Castillo Santamaria (the applicants) are all citizens of Colombia seeking
refugee protection pursuant to sections 96 and 97 of the Act. The principal applicant,
Luis Eduardo Castillo, alleged a well-founded fear of persecution by reason of
his membership in a particular social group, that is, family membership and his
perceived political opinion. The circumstances which led to the principal applicant’s
claim for refugee status were set out in the narrative portion of his Personal
Information Form (PIF).
[4]
The
principal applicant’s father was a police detective who served in the Security
Administration Department (DAS), which controls the immigration and emigration
of foreigners and their movement within Columbia. The
principal applicant’s father’s duties included investigating, policing and
presenting cases for prosecution. The principal applicant alleges that while
working in the DAS, his father was responsible for arresting many members of
guerrilla organizations (namely the Revolutionary Armed Forces of Colombia
(FARC) and the National Liberation Army (ELN)) for various crimes including
drug trafficking.
[5]
In
May 2005, the principal applicant alleges that he received a phone call at
home. The unidentified caller asked for his father. When the principal applicant
informed the caller that his father was not there, the caller told him to tell
his father “to be careful because ‘we’ are going to finish him off by hurting
him where he would hurt the most, by hurting his sons”. The principal applicant
alleges that the caller then added “we have located them; we know where each
works.” When the principal applicant asked the caller why he was making these
threats, the caller said that his father would know.
[6]
In
July 2005, the principal applicant alleges that his father received a phone
call from a man who said that he was reminding his father of their previous
call. When the father inquired as to the identity of the caller, the caller
stated “you’ll find out who we are when we finish with Luis Eduardo and Jack,
and we know where they work.”
[7]
In
September 2005, the principal applicant alleges he answered yet another
threatening call. While he believes that it was a different caller, the man
repeated the same threat. The principal applicant reported the threat to the
Attorney General’s Office on October 19, 2005. He is not certain whether the
phone calls were ever intercepted as he had requested in his report.
[8]
On
October 24, 2005, the principal applicant left Colombia for Canada. He was sent
to Toronto by his employer to study English at York University. On October
28, 2005, he went to a Canadian immigration office and advised the officer that
he wished to make a refugee claim.
[9]
On
November 2, 2005, the principal applicant alleges that his father was on his
way to a shopping center when he was accosted by a man who insulted and
threatened him. The attacker reminded the principal applicant’s father of his
time working for the DAS, and then slowly backed away. The day after the
incident, the principal applicant’s father gave an oral statement to the police
in Puerto Colombia concerning
both the phone threats and the previous day’s incident. A formal report was
made and the police promised to investigate. The following day, the father
reported the event to the Attorney General’s office.
[10]
Since
these incidents, the principal applicant’s parents have left their town to stay
with relatives elsewhere. The principal applicant’s brother is afraid, but
hopes that because he travels a great deal he can avoid the threats. The
principal applicant’s wife and child are living mostly with his in-laws. The
applicants’ hearing was held on November 9, 2006 and a negative decision was
rendered on December 14, 2006. This is the judicial review of the Board’s
decision.
Board’s
Decision
[11]
The
Board began by noting that the applicants were all citizens of Mexico seeking
refugee protection. I note here that the applicants are not citizens of Mexico,
but Colombia. The Board
then stated that the determinative issues in the application were credibility
and whether the claim was well-founded. The Board noted that testimony given
under oath is presumed to be true unless there is a valid reason to doubt its
truthfulness. The Board also noted that it was guided by the principal
articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)
at 357, which held that the truthfulness of a witness’s story depends on its
harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable given the circumstances.
[12]
In
rendering its decision, the Board made the following findings:
- The
Board did not find the principal applicant to be a credible or trustworthy
witness.
- The
Board found that it was mere speculation on the principal applicant’s part
that the anonymous phone threats were from the FARC and/or the ELN.
- The
Board was not persuaded that the principal applicant and/or his family
were ever approached or threatened by the FARC or the ELN at the material
time indicated by the principal applicant.
- The
Board found that given that the principal applicant did not flee Colombia because
of the threats but came to Canada to study English and given that his
family are still in Colombia, it belies his
subjective fear.
- The
Board found that given the negative credibility findings in areas central
and material to the principal applicant’s claim, there was not a serious
possibility that he would be persecuted for a Convention ground should he
return to Columbia.
[13]
With
regards to the section 97 analysis, the Board noted that it had reviewed all
the documentation and found that there was no evidence that the principal
applicant would be subjected to any risk, other than that of general violence
in Colombia. The Board
did not find that the principal applicant would face a risk to his life or be
subjected to cruel and unusual treatment or punishment or torture should he
return to Columbia. Finally,
the Board stated that as the associated claims were based on the principal
applicant’s evidence which the Board found not to be credible, the Board made
the same finding.
Issues
[14]
The
applicants submitted the following issues for consideration:
- Did
the Board err in overlooking and misstating evidence central to the
applicants’ claims?
- Did
the Board err in failing to give cogent or any reasons for its negative
decision?
- Did
the Board err in failing to adequately assess the issue of risk under
paragraph 97 of the Act?
[15]
I
would rephrase the issues as follows:
- What
is the appropriate standard of review?
- Did
the Board fail to consider the documentary evidence relevant to the
applicants’ claims?
- Did
the Board err in finding that the principal applicant was neither
credible, nor trustworthy as a witness?
- Did
the Board err in failing to conduct a separate section 97 analysis?
Applicants’
Submissions
[16]
The
applicants submitted that the Board failed to properly consider all the
evidence central to the applicants’ claim. The applicants submitted that they
are citizens of Colombia, not Mexico as set out by the
Board. The applicants submitted that the Board mentioned only one of the
threatening phone calls answered by the principal applicant, and thus erred in
failing to consider the other threatening incidents, namely, the second and
third phone calls, the assault on his father and the tailing of his wife.
[17]
The
applicants submitted that it was inaccurate for the Board to state without
qualification that the principal applicant “alleged that he became a target of
the FARC or the ELN and to characterize his testimony on the identity of the
persons who threatened him as “mere speculation”. The applicants submitted that
the principal applicant did not baldly allege or speculate as to the identity
of these persons, but yet wrote in his PIF and testified at the hearing that he
may have been targeted by ordinary criminals whom his father had arrested and
been instrumental in imprisoning. In any case, the applicants submitted that
the Board’s finding that without certainty about identity the claims are not
credible, is unreasonable.
[18]
The
applicants submitted that in dismissing the police and Attorney General’s
reports because they lacked “evidence which confirmed that it was the FARC or
the ELN” who made threats, the Board misapprehended the nature of these
documents. The applicants submitted that the reports were only observations and
that it was up to the authorities to investigate and determine the identity of
those persons. The reports go to the occurrence of the incidents and not the
identity of those involved.
[19]
The
applicants submitted that the principal applicant’s conduct in deciding while
en route to Canada to make a
refugee claim emphasizes – rather than, as the Board says “belies” – the
applicants’ subjective fear. The Board’s finding that the fact that the
principal applicant’s parents’ and siblings’ remain in Colombia “belies” the
subjective fear is unexplained and inexplicable when in fact the family members
are all in hiding.
[20]
The
applicants submitted that the Board’s examples of lack of credibility are
unfounded or ill-founded as the Board does no more than imply that there are
inconsistencies or implausibilities in the principal applicant’s testimony.
Judicial review should be allowed where it is not clear in the Board’s reasons
whether they questioned the truthfulness of the applicant’s evidence or whether,
on the evidence, the applicant failed to satisfy the Board that his fear of
persecution was well-founded.
[21]
The
applicants also submitted that the Board failed to consider the particular
circumstances of the applicants in light of the documentary evidence concerning
the targeting of family members of those who are or were involved in the
administration of justice. Specifically, the applicants submitted that the United
National High Commission for Refugee Report (UNHCR Report) discusses how past
and present members of state security forces and their families are among the
groups at heightened risk of persecution and serious harm, and thus, the Board
should have expressly addressed this report.
[22]
Lastly,
the applicants submitted that the Board’s summary dismissal of the section 97
claim falls well short of the analysis required as the Board has not made an
individualised assessment of the risk.
Respondent’s
Submissions
[23]
The
respondent submitted that the applicants have failed to show that the Board did
not consider all of the evidence. The respondent submitted that although the
Board mistakenly noted that the applicants were citizens of Mexico, the Board
was obviously alive to the nature of the applicants’ claim and their alleged
fears in Colombia. Immaterial and
isolated mistakes raise no ground for judicial review (Miranda v. Canada (Minister of
Employment and Immigration) (1993), 63 F.T.R. 81; Nyathi v. Canada (Minister of
Citizenship and Immigration, 2003 FC 1119; Gan v. Minister of Public
Safety and Emergency Preparedness, 2006 FC 1329). The respondent submitted
that the Board did not err in failing to mention the further phone calls. The
Board is presumed to have considered all of the evidence unless the applicant
can establish otherwise (Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (C.A.)). The respondent submitted that
the Board did in fact refer to the second phone call and the reports of the
other incidents and thus the applicants’ argument is baseless. The respondent submitted
that with regards to the credibility findings, the applicants’ clearly based
their claim on the allegation that they were likely being threatened by the
FARC or ELN. Thus, it was reasonable for the Board to find in light of the
speculative evidence before it that the applicants were never approached or
threatened by the FARC or ELN. The respondent submitted that the applicants are
really taking issue with the Board’s weighing of the evidence and findings of
fact, which are entitled to the highest degree of deference (Chen v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1194).
[24]
The
respondent submitted that the applicants have failed to raise any serious issue
with respect to the adequacy of the Board’s reasons. The respondent submitted
that the Board’s findings were reasonable, and its decision was reasonably
substantiated. The respondent submitted that the applicants are not really
taking issue with the adequacy of the reasons, but yet the reasonableness of
the Board’s finding that their subjective fear was not credible. When the
standard of review is one of patent unreasonableness, it is not sufficient to
present an alternative line of reasoning with a reasonable explanation. Instead,
the applicant must identify a conclusion of the Board that is not supportable
in any way by the evidence (Sinan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 87 at paragraph 11).
[25]
The
respondent submitted that the applicants’ submission that the Board erred in
conducting a summary analysis of their section 97 claim raises no serious issue
for judicial review. The respondent submitted that without any credible
evidence on the central and material elements of the claim, it was reasonable
for the Board to find the applicants would not face a risk to life or of cruel
and unusual treatment or punishment or a danger of being tortured upon return
to Colombia. When there
is no credible evidence left to link the claim to a basis of protection
afforded by section 97 of the Act, the Court has found it reasonable for the
Board to dismiss the claim (De Silva v.Canada (Minister of
Citizenship and Immigration), 2004 FC 1141 at paragraphs 9 to12; Hersi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 426 at
paragraph 7, Nyathi above at paragraph 21, Alas v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1441 at paragraph
14).
Analysis and
Decision
[26]
Issue
1
What is
the appropriate standard of review?
With regards
to the consideration of documentary evidence, the Board may evaluate the
probative value of evidence, including documentary evidence, and the standard
of review applicable to such findings is patent unreasonableness (see Akhter
v. Canada (Minister of
Citizenship and Immigration) 2006 FC 914).
[27]
With
regards to the Board’s credibility findings, the appropriate standard of review
is one of patent unreasonableness; they are accorded a high level of deference
(see Juan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 809 at paragraph 2).
[28]
I
propose to deal first with Issue 3.
[29]
Issue
3
Did the
Board err in finding that the principal applicant was neither credible nor
trustworthy as a witness?
The
applicants submitted that the Board erred in finding that the principal applicant
was neither a credible, nor a trustworthy witness. The respondent submitted
that the Board’s credibility findings attract the highest level of deference
and should not be interfered with by the Court unless there was no evidence
before the Board capable of supporting its finding.
[30]
I
agree with the respondent that credibility findings are owed the utmost level
of deference. In Juan above, Justice Dawson of this Court articulated at
paragraph 2:
The standard of review to be applied to
the Board's findings of credibility is patent unreasonableness. A high level of
deference is given because under the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 it is the Board that is responsible for making findings of
fact and credibility in respect of refugee claimants, and it is the Board that
has the opportunity to observe first-hand the demeanour of claimants and other
witnesses who appear before it.
[31]
However,
Justice Dawson went on to note at paragraph 4 that where the Board’s finding of
a lack of credibility is based on implausibilities:
[…] there must be a basis in the
evidence to support the inferences (Miral v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 254 (F.C.T.D.) at paragraph
25). Put another way, inferences must be based upon more than an intuitive
reaction to evidence.
[32]
Page
3 of the Board’s decision reads:
Further, the claimant’s own evidence was
that he did not flee Colombia because of threats but came to Canada to study English, sponsored
by his workplace. The claimant’s evidence revealed that he came to the decision
to make a refugee claim after having a conversation with another
Spanish-speaking person on the flight to Canada. The panel finds that taken together
with the very fact that the claimant’s father, mother, brother and sister are
still in Colombia, it belies his subjective
fear. [Emphasis added.]
[33]
In
my opinion, the Board’s finding that the applicants’ subjective fear is
contradicted by the fact that the principal applicant did not come to Canada
initially seeking refugee status and that his family members remained in
Colombia is patently unreasonable. The inference drawn, that the principal applicant
lacks a subjective fear because he did not come to Canada with the initial
intention of claiming refugee status, is no more than an intuitive reaction to
the evidence. There is no evidence on the record to show that coming to Canada with one
motivation and then claiming refugee status thereafter lessens an applicant’s
subjective fear. Additionally, in this case the principal applicant claims that
he did not know until his conversation on the flight to Canada that he was
able to seek refugee status in Canada. Moreover, the principal applicant’s PIF
provided ample evidence that while many of his family members had remained in Colombia, they had
all made efforts to move away or stay away from the location where the threats
took place. In fact, during the oral hearing the principal applicant testified
that both his brother and parents were taking actions to ensure their departure
from Colombia. This
finding was central to the Board’s ultimate finding on credibility and
subjective fear.
[34]
The
Board also appears to have based its decision as to credibility on the fact
that the callers never identified themselves to the principal applicant or his
father and that it was “mere speculation” on the applicants’ part that the
callers were members of FARC or the ELN. This finding by the Board does not
support a finding of non-credibility of the principal applicant. It was not
mere speculation by the principal applicant that the callers were from FARC or
the ELN. The principal applicant stated in his PIF that he was almost certain
that the callers were from FARC or ELN. In any event, just because the
threatening caller does not identify himself, does not make the principal applicant
not credible.
[35]
The
Board also made reference to the police report and the report of the Attorney
General and stated that there was no evidence in these reports to confirm that
the callers were from FARC or the ELN. Again, this cannot serve as a basis for
finding the principal applicant not to be credible.
[36]
In
summary, I find the Board’s credibility finding to be patently unreasonable.
[37]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for re-determination.
[38]
Neither
party wished to submit a proposed serious question of general importance for
consideration for certification.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for re-determination.
“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):
|
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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