Date: 20110330
Docket: IMM-4046-10
Citation:
2011 FC 390
Ottawa, Ontario, March 30, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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VILLEGAS ECHEVERRI, CLARA INES
VILLEGAS ECHEVERRI, LUISA
FERNANDA
MARULANDA CARDONA, VICTOR HUGO
VILLEGAS, MANUELA
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Applicants
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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]
The
principal Applicant, Clara Ines Villegas Echeverri (“Echeverri”), is a citizen
of Colombia. She alleges
that, between December 1989 and early 1991, members of the Revolutionary Armed
Forces of Colombia (“FARC”) threatened her and her siblings with death if they
did not join their organization, murdered two of her brothers and then kidnapped
one of her sisters.
[2]
Ms.
Villegas claimed refugee status in Canada along with her common law spouse (Mr.
Marulanda) and her two daughters (collectively, the “Applicants”) upon their
arrival here in April 2009, after spending many years illegally in the United
States.
[3]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada
rejected her claims on the basis that it found her “story to be not wholly
credible in its material respects.” In reaching this conclusion, two of the
Board’s key findings were that: (i) even if her claims were to be believed, the
FARC was only interested in her brothers; and (ii) there had been “no
conclusive determination by authorities that the killers of her brothers were
the FARC.” The Board also rejected Mr. Marulanda’s claims on credibility
grounds. In addition, the Board determined that the Applicants had not behaved
in a manner consistent with their claims of having a subjective fear of
persecution should they return to Colombia. It also found that
they would have an internal flight alternative (IFA) in Bogota, should they
return to Colombia.
[4]
The
Applicants seek to have the decision set aside on the basis that the Board erred
by, among other things, (i) concluding that the FARC was only interested in Ms.
Villegas’ brothers, (ii) requiring proof of a conclusive determination by
Colombian authorities that the FARC was responsible for the violent deaths of
her brothers, and (iii) failing to consider the compelling reasons exception in
section 108(4) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (“IRPA”).
[5]
I
agree with the Applicants’ position on these particular points. Accordingly, for
the reasons that follow, the Board’s decision is quashed and remitted for
reconsideration to a differently constituted panel of the Board.
I. Background
[6]
Ms.
Villegas comes from a poor neighbourhood in Medillin, Colombia. At
the outset of the events described below, she had three brothers and two
sisters. One of those sisters moved to the United States in 1987.
[7]
Ms.
Villegas claims that her family started to have problems with the FARC in
October 1989 when she, her sister Beatriz and two of her brothers were
approached near their home by two men who identified themselves as being with
the FARC. These men, who wore FARC uniforms, allegedly threatened to kill Ms. Villegas
and her siblings if they did not join the FARC. After they repeatedly refused
to join the FARC at that time and following a number of subsequent approaches
and threatening telephone calls from the FARC, Ms. Villegas’ brother Jose was
shot dead close to their home in December 1989.
[8]
Shortly
after her brother’s murder, Ms. Villegas claims that she was again confronted
near her home by two representatives of the FARC, who were on a motorcycle. Those
men allegedly repeated that she and her brothers and sisters should join the
FARC and threatened them if they did not do so. In April 1990, her brother Juan
was again warned that additional members of his family would be killed if he
did not join the FARC. He was also ordered to attend a meeting with the urban
militia the following day. He immediately fled to his aunt’s house. Two days later,
his younger brother Gabriel was shot to death by people in an unidentified car.
[9]
Juan
was then sent to the United States and the rest of the
family moved to the city outskirts. However, in early 1991, Ms. Villegas’
sister, Beatriz, was found by the FARC and abducted one evening near her
school. While she was held by the FARC, she was interrogated about the whereabouts
of her brother Juan. When she informed the FARC that he was in the United
States,
they demanded a ransom of $US 3,000 for her release. After the family
managed to quickly collect this sum through Juan and his other sister who was
living in the U.S., they paid
the ransom and Beatriz was released, all within 24 hours. The family then
apparently decided to flee Colombia.
[10]
Ms. Villegas claims that, due to their financial circumstances, the
family had to leave Colombia in stages. Beatriz
apparently left sometime in 1991, while the others remained in hiding. Ms. Villegas
then left in August 1992 and her parents left with her daughter Luisa in 1995.
She then gave birth to a second daughter, Manuela in the United
States
in 1997 and met her common law husband, Mr. Marulanda, in 2001.
[11]
Mr.
Marulanda claims that his contact with the FARC began in mid-1998 when he
became involved with a community group that focused on helping youth in the municipality of Urumita,
where he worked as a driver for his great-uncle, a missionary priest. Among
other things, the community group tried to keep youth in the area away from
violence and the FARC. After Mr. Marulanda had been working with that group for
three or four months, he allegedly began to receive telephone calls from representatives
of the FARC, who demanded that they keep away from the youth in the area and
that he and his great-uncle meet with the FARC to discuss this issue. When they
refused to meet, they began to receive telephone calls and letters demanding
that they either stop their community work and support the FARC’s cause or
leave the area.
[12]
Mr.
Marulanda also claims that, in August 2000, he and his great-uncle were
stopped at a FARC roadblock where their identity documents were checked. He
alleges that they were almost abducted, but managed to escape after a military
helicopter spotted the group and engaged the FARC in a firefight.
[13]
He
further claims that he received a death note which also declared him to be a
military target, in September 2000, at the hostel where he lived. He then
apparently moved back to his home town of Envigado. When the
FARC traced him there and began to contact him by telephone, he fled to the U.S. in February
2001. He then learned that his great-uncle, the priest, was kidnapped for several
days in June 2002. During his detention, his great-uncle allegedly was
physically and psychologically abused. He was also told that the FARC wanted to
discuss some “pending matters” with Mr. Marulanda. Mr. Marulanda alleges that
after his great-uncle was released, a second death note addressed to him arrived
at the hostel where he formerly resided.
II. The Decision
under Review
[14]
At
the outset of its decision, the Board identified the determinative issues to be:
(i) the credibility of Ms. Villegas and Mr. Marulanda; and (ii) the existence
of an IFA. The Board also found that Ms. Villegas and Mr. Marulanda did not
behave in a manner consistent with having a subjective fear of persecution.
[15]
Regarding the
credibility of Ms. Villegas, the Board found that, even if her allegations were
to be believed, the FARC was “only interested in her brothers.” However, it
then drew a serious negative inference from the lack of conclusive
evidence, such as a police report or a prior written death threat, that her brothers
were killed by the FARC. It therefore concluded that it did “not believe in the
overall credibility of [her] assertions.”
[16]
In
the course of making these findings, the Board noted that, from early 1990, when
Ms. Villegas had her first encounter with the FARC, to the time she left the
country in 1992, the FARC did not contact her “personally as a target.” It also
noted that the FARC did not contact her parents during this period or until
they fled the country in 1995, and that the FARC never contacted any of the
members of her mother’s family who remained in Colombia, in an attempt to find Ms. Villegas. Based
on these findings, the Board concluded that “the principal claimant was not or
is not a target of the FARC.”
[17]
Moreover,
the Board stated that it is hard to believe that, even if she had been targeted
by the FARC in 1990, she would be such a target today, given that: (i) she fled
Colombia 18 years ago; (ii) it has been 20 years since her alleged personal confrontation
with the FARC; (iii) there have been considerable organizational changes within
the FARC during that period; and (iv) her physical appearance has changed due
to aging since she left Colombia.
[18]
The
Board also acknowledged a psychologist’s report that allegedly corroborated Ms.
Villegas’ claims. However, it found that it was hard to believe that she
suffers from post-traumatic stress disorder or, if she does, that it was caused
by her experiences in Colombia. This finding was based
on its observations that: (i) she did not hesitate when answering questions or
give any indication of having a memory failure that could be caused by
psychological stress; and (ii) she had a tendency to speculate and embellish.
[19]
Regarding
the credibility of Mr. Marulanda, the Board noted that the FARC wanted him to
stop working with the community group, and that he complied with this demand.
The Board found that since he complied with the FARC’s request, “there was no longer
any problem as far as the FARC were concerned.” The Board also drew a negative
inference from the fact that he did not file a police report and did not have a
copy of the written death threat that he received in September 2000. After
acknowledging the alleged telephone calls and written death threats that he
received, the Board further noted that, apart from the incident when he and his
great-uncle were stopped at a roadblock, he did not have any personal
confrontations with or visits from the FARC at the hostel where he stayed or at
his home after he returned to his home in Envigado. In addition, the Board
noted that his great-uncle was not visited or confronted by the FARC after he too
returned to Envigado. The panel identified this fact as “reinforcing the
panel’s belief that, on a balance of probabilities, if he indeed had been
targeted by the FARC, he no longer is a target as he had effectively complied
with the FARC demand.”
[20]
Regarding
the subjective fear of the Applicants, the Board noted that Ms. Villegas was in
the United States for 17 years but did not claim asylum because the one year
time limit for doing so allegedly had expired by the time she learned about the
possibility of making such a claim. The Board also noted that she was then told
by a lawyer that her chances of succeeding were slim. With respect to Mr. Marulanda,
the Board similarly observed that he lived for approximately eight years in the
United
States
without making a claim for asylum, basically for the same reason as Ms. Villegas.
The Board stated that if they truly feared being returned to Colombia, it would be reasonable
to expect that they would have applied for refugee protection in a timely
manner and at the first opportunity. After briefly discussing some of this
Court’s jurisprudence regarding the consequences of failing to apply for asylum
in similar circumstances, the Board concluded that there was neither an
objective basis nor a subjective basis for the Applicants’ stated fears. However,
as noted at paragraph 29 below, this finding seems to have been linked to the
Board’s conclusions regarding credibility.
[21]
Regarding
the availability of an IFA, after summarizing the information in a number of
the documents in its National Documentation Package for Colombia, dated April 30, 2010, the
Board found that the Applicants could safely resettle in Bogota, if they were required
to return to Colombia. Among other things,
the information summarized by the Board reported that:
i.
Colombia is a functioning
democracy in which free and fair elections recently were held;
ii.
government
forces have succeeded in pushing the FARC out of heavily populated urban areas
and regaining control over road arteries;
iii.
there
was only one reported incident in 2009 in which the FARC harmed anyone in Bogota – that involved a
terrorist attack on a Blockbuster outlet in January of that year;
iv.
the
only report of an incident involving the FARC in a large urban centre in 2008
occurred in September of that year, when a car bomb killed four civilians in
front of a court house in Cali;
v.
efforts
of the state to provide protection to its citizens are not always perfect but
are most successful in urban areas such as Bogota;
vi.
although
the FARC continues to control remote areas, support for the FARC in Bogota and other large urban
areas has vanished; and
vii.
the
FARC is attempting to regain legitimacy in the rural population by avoiding
harm to civilians, while focusing on high impact military targets.
[22]
Finally,
with respect to the minor Applicant Manuela Villegas, who is a citizen of the United
States,
the Board found that there is adequate state protection in that country, such
that she would not face a serious risk of persecution or harm if she were to
return to that country.
III. Standard
of Review
[23]
The standard of review applicable to the
Board’s credibility findings is reasonableness (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51-55; Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, at paras. 46-47.)
[24]
For the reasons set forth in Alharazim v. Canada (Minister of Citizenship and Immigration), 2010 FC 1044, at paras. 16-25, I believe that reasonableness is the
appropriate standard of review to apply with respect to the issue that has been
raised regarding the proper interpretation and application of subsection 108(4)
of the IRPA. In my view, the recent decisions of the Supreme Court of Canada in Smith v.
Alliance Pipeline Ltd., 2011 SCC 7, at paras. 28 and 37, and in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, at para.
34, provide further support for this position.
[25]
It
follows that the Board’s credibility findings and its failure to conduct an
assessment under subsection 108(4) will stand unless the Board’s decision does
not fall “within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, above, at para. 47).
[26]
Given my disposition of the matters discussed
below, it is not necessary to address the standard of review applicable to the
other issues that the Applicants raised with respect to the Board’s decision,
and that are not addressed in these reasons.
IV. Analysis
A.
Did the
Board err in reaching its finding regarding the overall credibility of Ms. Villegas’
claims and then failing to consider the exception in subsection 108(4)?
[27]
In decisions made under sections 96 and 97 of the IRPA, an adverse
finding regarding the overall credibility of an applicant’s claims and a
finding that an IFA is available in the applicant’s home country provide
separate and distinct grounds for rejecting the application for refugee
protection. That is to say, if the Board’s IFA analysis can withstand judicial
review, its decision typically will stand, even though the Board may have made
one or more unreasonable credibility findings. The converse is also true. Of
course, this assumes that the Board has not committed any overriding errors
that warrant setting aside its overall decision, for example, on procedural
fairness grounds.
[28]
In
this case, I am satisfied that the Board’s IFA analysis can withstand scrutiny.
The Board’s conclusion that the Applicants have a viable IFA in Bogota was made
following a detailed assessment of information reported in a number of credible
objective sources of information regarding country conditions in Colombia. Having
particular regard to the uncontested evidence summarized at paragraph 21 above,
that finding was not unreasonable. Ordinarily, this conclusion would provide a
sufficient basis upon which to reject this type of an application for judicial
review, even though it is solely forward-looking in nature.
[29]
However,
this case is exceptional given: (i) the nature of the alleged persecution
suffered by members of Ms. Villegas’ immediate family; (ii) the fact that she
also claimed to have suffered past persecution; (iii) the fact that the Board
made some unreasonable findings in the course of impugning the overall
credibility of her claims; and (iv) the Board specifically found that “[t]he
determinative issue in this case is credibility, and in relation to that,
the well foundedness of the claimants’ fear” (emphasis added). Had the Board
not made the two unreasonable credibility findings discussed below, it may well
have accepted the overall credibility of Ms. Villegas’ claims, including as
they related to her subjective fears, such that it would then have been obliged
to address the humanitarian provision that is set forth in subsection 108(4) of
the IRPA.
[30]
Subsection
108(4) states:
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Exception
(4) Paragraph (1)(e) does not apply to
a person who establishes that there are compelling reasons arising out of
previous persecution, torture, treatment or punishment for refusing to avail
themselves of the protection of the country which they left, or outside of
which they remained, due to such previous persecution, torture, treatment or
punishment.
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Exception
(4) L’alinéa (1)e) ne s’applique pas si
le demandeur prouve qu’il y a des raisons impérieuses, tenant à des
persécutions, à la torture ou à des traitements ou peines antérieurs, de
refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel
il est demeuré.
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[31]
A
long line of jurisprudence establishes that the Board is entitled to proceed
directly to a forward-looking assessment of whether an applicant for refugee
protection has a well-founded fear of future persecution, without first making
a determination of whether the applicant has suffered past persecution and, if
so, whether subsection 108(4) applies. (Hassan v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 946 (C.A.); Yusuf v.
Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 35, at
para. 2 (C.A.); Brown v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 988, at para. 7 (T.D.); Yamba v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 457, at para. 6; Corrales
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No.
1283, at paras. 6-7 (T.D.); Kudar v. Canada (Minister of
Citizenship and Immigration), 2004 FC 648, at
para. 10; Brovina
v. Canada (Minister of Citizenship and Immigration), 2004 FC 635, at paras.
6-9; Decka v. Canada (Minister of Citizenship and Immigration), 2005 FC
822, at paras. 15-16; Thiaw v. Canada (Minister
of Citizenship and Immigration), 2006 FC 965, at para. 24; Cardenas v.
Canada (Minister of Citizenship and Immigration), 2010 FC 537, at para. 37; and Kamara
v. Canada (Minister of Citizenship and Immigration), 2008 FC 785, at para. 40).
[32]
However, there may be some situations in which the nature of the
alleged past persecution is so severe that it would be contrary to the
underlying spirit of subsection 108(4), and a reviewable error, for anyone
reviewing the application for refugee protection to fail to consider the
potential applicability of that provision (Alharazim, above, at paras.
44-53). For the reasons discussed in Alharazim, above, those situations
are limited to where there is prima facie evidence of past persecution
that is so exceptional in its severity as to rise to the level of “appalling”
or “atrocious.”
[33]
As
recognized in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2
F.C. 739, at 747-748 (C.A.), the inspiration for what is now subsection 108(4)
is found in Article 1 C (5) of the 1951 United Nations Convention Relating
to the Status of Refugees (the “Refugee Convention”). Article 1 C (5)
states:
C. This Convention shall cease to apply to any person falling
under the terms of section A if:
….
(5)
He can no
longer, because of the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, continue to refuse to avail
himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling
under section A(1) of this article who is able to invoke compelling reasons
arising out of previous persecution for refusing to avail himself of the
protection of the country of nationality.
[34]
With
respect to the
second paragraph of Article 1 C (5), the UN Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees (the “Handbook”) states:
136. The second paragraph of this clause contains an
exception to the cessation provision contained in the first paragraph. It deals
with the special situation where a person may have been subjected to very
serious persecution in the past and will not therefore cease to be a refugee,
even if fundamental changes have occurred in his country of origin. The
reference to Article 1 A (1) indicates that the exception applies to “statutory
refugees”. At the time when the 1951 convention was elaborated, these formed
the majority of refugees. The exception, however, reflects a more general
humanitarian principle, which could also be applied to refugees other than
statutory refugees. It is frequently recognized that a person who – or whose
family – has suffered under atrocious forms of persecution should not be
expected to repatriate. Even though there may have been a change of regime in
his country, this may not always produce a complete change in the attitude of
the population, nor, in view of his past experiences, in the mind of the
refugee. (Emphasis added.)
[35]
The
underscored words of the passage quoted immediately above make it clear that
the past persecution contemplated by the second paragraph of Article 1 C (5)
was intended to extend to past persecution of family members of the refugee
claimant. This was recognized by my colleague Justice Martineau in Suleiman
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1125, at paras. 13 and 22. In my
view, this is particularly the case with respect to past persecution of a
refugee claimant’s immediate family members, namely, siblings, children and
parents.
[36]
Considering
that subsection 108(4) was intended to be an “exceptional” provision,
applicable “to only a tiny minority” of claimants (Obstoj, above, at
747-748), it is reasonable to infer that the circumstances in which it was
contemplated that subsection 108(4) would apply in the context of family
members typically would involve immediate family members, as opposed to more
distant relatives.
[37]
That
said, it is important to recognize that claims for protection under section 96
of the IRPA must be based on direct, as opposed to indirect, persecution (Rafizade
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 359,
at paras. 10-11; Ndegwa v. Canada (Minister of Citizenship and Immigration),
2006 FC 847, at paras. 8-9; Escorcia v. Canada (Minister of Citizenship and
Immigration), 2007 FC 644, at para. 39). Therefore, where the prima
facie evidence of “appalling” or “atrocious” past persecution concerns the
past persecution of an immediate family member, there must also be credible
evidence that could establish either some direct past persecution of the
specific applicant for refugee protection, or persecution of that person’s
family as a social group (Ndegwa, above; Asghar v. Canada (Minister
of Citizenship and Immigration), 2005 FC 768, at paras. 19-20), before the
Board’s obligation to consider the potential application of subsection 108(4)
will be triggered.
[38]
As
noted in section II above, the Board found, on a balance of probabilities,
that, even if Ms. Villegas’ claims were to be believed, “the FARC had no
interest in her but rather were after the brothers in the family.” In reaching
this finding, the Board appears to have confused the issue of whether all of
the siblings in the family had been persecuted, with the questions of which
members of the family the FARC (i) chose to murder in order to achieve its
objectives; and (ii) may have most wanted to recruit. In my view, the Board’s finding
that the FARC was “only interested in her brothers” was unreasonable, given Ms.
Villegas’ uncontradicted evidence that:
i.
in
October 1989, two representatives of the FARC threatened Ms. Villegas, her
sister Beatriz and two of her brothers with death if they did not join
the FARC;
ii.
shortly
after her brother Jose was killed, Ms. Villegas was again confronted and
allegedly threatened if she, her remaining brothers and her sister Beatriz did
not join them;
iii.
in
April 1990, her brother Juan was warned that additional members of his
family would be killed if he did not join the FARC;
iv.
shortly
after her brother Gabriel was murdered, her sister Beatriz was kidnapped; and
v.
shortly
following Juan’s subsequent flight to the United States, Ms. Villegas,
Beatriz and her parents moved to the outskirts of Medillin, thereby evidencing
their belief and fear that the FARC was targeting and persecuting the family as
a whole, rather than just the brothers.
[39]
After
making the unreasonable finding that the FARC was only interested in Ms. Villegas’
brothers, the Board proceeded to reject the overall credibility of Ms.
Villegas’ claims, at least in part for this reason and also because she
provided “no conclusive evidence that her brothers were killed by the FARC”
(emphasis added). The Board characterized the absence of such evidence as being
a “lack of … crucial documentary evidence in support of her claim”
(emphasis added).
[40]
The
Board erred by requiring conclusive evidence that the FARC was responsible
for the death of Ms. Villegas’ brothers. In the absence of any other stated
basis for disbelieving her testimony that her brothers were murdered by the
FARC, it was unreasonable for the Board to require conclusive evidence in
support of this claim before being prepared to accept it, particularly given:
(i) her uncontradicted testimony; and (ii) the corroborating and unimpugned documentation
that she provided to the Board, including (a) her brothers’ death certificates,
which stated that they died in a violent manner, and (b) a news article which
reported that “the Judge 77 from Criminal Instruction did the removal of [her
brother Jose’s] corpse, which presented multiple impacts from 9 millimeter (sic)
caliber bullets” (translation) (Maldonado v. Canada (Minister of Employment
and Immigration, [1980] 2 F.C. 302 (F.C.A.); Attakora v. Canada
(Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.); Ahortor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705
(T.D.); Alvarez v. Canada (Minister of Citizenship and Immigration),
2011 FC 154, at para. 5).
[41]
On
the particular facts of this case, the combination of this latter error and the
Board’s unreasonable finding that the FARC was only interested in Ms. Villegas’
brothers was very significant. In short, had the Board not imposed this
inordinately high evidentiary burden upon itself, it may well have concluded
that the FARC was indeed responsible for the murder of two of Ms. Villegas’ brothers.
[42]
In
turn, had the Board accepted that the FARC was responsible for those murders,
it would have recognized that the murders clearly constituted past persecution of
them that rose to the level of “appalling” or “atrocious.”
[43]
This
is significant because, had the Board not also erred in concluding that the
FARC was only interested in Ms. Villegas’ brothers, there was evidence which
could have reasonably led the Board to conclude either that: (i) she had
personally been persecuted; or (ii) she was a member of a social group, namely,
her family, that was persecuted, and that she had a sufficient nexus to that
persecution as to warrant refugee protection (Ndegwa, above).
[44]
Therefore,
the preconditions to the Board’s obligation to consider whether the “compelling
reasons” exception in subsection 108(4) might apply, were satisfied. Indeed,
once those preconditions were satisfied, the Board’s obligation to consider the
potential application of subsection 108(4) was increased in this particular
case, because: (i) there was other evidence which strengthened the Applicants’
case under that provision; (ii) the Applicants’ counsel repeatedly requested
the Board to consider the potential application of that provision, throughout the
oral hearing (see, for example, pp. 849-854, 867, 880 and 890 of the CTR); and
(iii) the Board agreed to adjourn the hearing specifically to permit the
Applicants’ counsel to better prepare his case under subsection 108(4) (CTR, p.
876).
[45]
Accordingly,
I am satisfied that the Board committed a reviewable error by erring with
respect to the two credibility findings discussed above and then failing to
consider the potential application of subsection 108(4).
V. Conclusion
[46]
Some
of the facts and findings of the Board in this case are very unfavourable to
the Applicants. These include the long period of time that the Applicants spent
in the United States without claiming asylum and the Board’s finding that the
Applicants would have an IFA in Bogota. The latter finding was
made following a detailed assessment of information in a number of credible
objective sources of objective information regarding country conditions in Colombia. Having
particular regard to the uncontested evidence summarized at paragraph 21 above,
that finding was not unreasonable. Ordinarily, this would provide a sufficient
basis upon which to reject this application.
[47]
However,
this case is exceptional because: (i) there was evidence before the Board which
indicated that some members of Ms. Villegas’ immediate family had been
subjected to a level of persecution which, prima facie, rose to the
level of being “appalling” or “atrocious”; and (ii) there was also evidence which
could reasonably have led the Board to conclude either that (a) Ms. Villegas
had personally been persecuted, or (b) she was a member of a social group,
namely her family, which had been persecuted, and that she had a sufficient
nexus to that persecution as to warrant refugee protection.
[48]
Had
the Board not made important errors in disbelieving the overall credibility of Ms.
Villegas’ claims, it may well have accepted the credibility of those claims.
Had it done so, it would then have been obliged to consider whether there were compelling
humanitarian reasons, arising out of past persecution, for invoking the
subsection 108(4) exception to the cessation clause in paragraph 108(1)(e) of
the IRPA.
[49]
In
short, had the Board accepted the overall credibility of Ms. Villegas’ claims,
there would have been credible evidence that: (i) she herself, or the social
group consisting of her family, had been subjected to past persecution; and
(ii) two of her brothers had been subjected to persecution that, prima facie,
rose to the level of being “appalling” or “atrocious”, by virtue of the fact
that they were murdered by the FARC. In these circumstances, the Board was
obliged to explicitly determine, and to address in its reasons, whether Ms. Villegas
or her family, as a social group, had in fact been subjected to past
persecution and whether there were compelling humanitarian grounds, as
contemplated by subsection 108(4), for not requiring her to avail herself of
the adequate state protection that the Board found now exists in Bogota.
[50]
In
failing to make these determinations, and to address these issues in its
reasons, the Board erred.
[51]
In
contrast to the situation that arose in Kalumba v. Canada (Minister of
Citizenship and Immigration), 2005 FC 680 at para. 18, where an IFA was
found to exist at the time of the applicant’s flight from his home country,
such that there was never any basis for granting refugee protection to the
applicant, no such finding was made in this case.
[52]
Accordingly,
this application for judicial review is granted.
JUDGMENT
THIS COURT
ORDERS AND ADJUGES THAT the Board’s decision, dated June 16, 2010, in
which it rejected the Applicants’ claims under sections 96 and 97 of the IRPA,
is set aside and remitted to a differently constituted panel of the Board for
reconsideration in accordance with these reasons.
There is no
question for certification.
“Paul
S. Crampton”
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