Date: 20110525
Docket: IMM-5324-10
Citation: 2011 FC 611
Ottawa, Ontario, May 25,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JHON EDUARD ORTEGA AYALA
ANGELICA ORTEGA AYALA
KEVIN ALBERTO AVELLAN
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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]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 3,
2010, wherein the Applicants were determined to be neither Convention refugees
nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA]. The determinative issues
for the Board were the Applicants’ credibility, claim of subjective fear and
whether their fear was objectively well-founded.
[2]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
Jhon
Eduard Ortega Ayala (the Principal Applicant, PA) and his sister, Angelica
Ortega Ayala (collectively, the Applicants) are citizens of Colombia. The minor
Applicant, Kevin Alberto Avellan, the son of Angelica, is a citizen of the
United States of America (USA). Their claim for refugee protection was
premised on threats they allegedly received from the Revolutionary Armed Forces
of Colombia (FARC).
[4]
The
Applicants allege that their problems began in December 1994 while they were
vacationing at their grandfather’s farm in Sonora, Valle
Cauca, in Trujillo Colombia. While the family was out horse-riding, they
were approached by armed men who later identified themselves as members of the
FARC. Their father and the steward of the farm were separated from the group
and informed that they needed to keep paying the vacuna, the tax imposed
by the guerrillas in order to be able to live and work in the region. They
were warned not to go to the authorities. Alarmed, the family decided to
return to Bogota once they
returned to the farm.
[5]
In
mid-June 1995, the Applicants’ family returned to the farm to attend the first
communion of the farm steward’s children, which was being held at the community
hall in the town. Later that night as the Applicants were getting into their
car, they claim they heard gunshots and people yelling. The Applicants’ father
told them to lie on the floor of the car, and he drove as fast as he could back
to the farm. They retrieved their belongings and left for Bogota. Later, in Bogota, they
learned that the FARC had entered the community hall that night and killed 13
people. Their father later accompanied his parents to make a denunciation to
the police in the city of Cali.
[6]
At
the beginning of September 1995, their father received a threatening phone call
from a man who identified himself as a member of the FARC. He told their
father that their family would be safe as long as they continued to pay the vacuna.
He used the names of the Applicants. At this point the Applicants’ parents
became fearful for their safety, and sent them to the USA.
B. Impugned
Decision
[7]
The
Board first rejected the claim of the minor Applicant since he is a citizen of
the USA and no claim
had been made against the USA. In considering the claim of the two
adult Applicants, the Board assessed the Applicants’ oral and written evidence
and all of the documentary evidence, but concluded that the Applicants lacked
credibility, and were unable to establish that they had either a subjectively
or objectively well-founded fear of persecution.
[8]
The
PA failed to provide any documentary evidence to show that his grandfather
owned the farm where the Applicants’ problems with the FARC allegedly began.
The Board found the PA’s explanation for why he had not obtained such
documentation, including inter alia, that it would take a long time to
get such documents, to be unreasonable. The Board expected to see such
documents because other Colombian claimants had been able to produce them at
other hearings and because the farm was central and material to their claim.
The failure to provide corroborating documentary evidence of farm ownership
raised a serious doubt in the Board’s mind as to whether the grandfather owned
the farm, and therefore the Board disbelieved that the incidents of December 1994
and June 1995 had happened. The Board therefore disbelieved that the
Applicants’ family received threats from the FARC and found that the Applicants
had fabricated their story.
[9]
The
Board further noted that even if it believed the Applicants’ story, there was
no evidence that the Applicants were ever personally targeted. Rather their
father and the farm steward were threatened. Moreover, vacuna was
allegedly regularly paid to the FARC and so there was no reason for the FARC to
threaten the Applicants’ family.
[10]
The
Board found that the PA’s long stay in the USA without
attempting to claim asylum was inconsistent with a subjective fear of
persecution. The PA explained that he could not afford to hire a lawyer and
that he could not file an asylum claim after being in the USA for over a
year. The Board rejected these explanations. The Board further found that the
PA’s testimony regarding his mother’s return to Colombia was
inconsistent with a subjective fear of persecution. Although she left Colombia
with the Applicants in 1996, she was deported to Colombia in 1997.
She did not attempt to seek refugee protection in Mexico or Canada
before returning to Colombia. The PA also failed to provide documentary
evidence to support his allegation that his mother needed to return to Colombia to take care
of her ailing mother.
[11]
The
Board did not believe that the Applicants had an objectively well-founded fear
of persecution in Colombia today, since there was no evidence that the
FARC had attempted to harm their mother, or determine the whereabouts of the
Applicants. The Board also found that there was no reason for the FARC to
target the Applicants based on the denunciations made by their father.
[12]
The
Board concluded that there was less than a mere possibility that the Applicants
would be persecuted by the FARC should they return to Colombia.
II. Issues
[13]
This
application raises the following issues:
(a) Was
it reasonable for the Board to make an adverse credibility inference based on
the PA’s failure to provide corroborating documentary evidence?
(b) Was
it reasonable for the Board to reject the PA’s testimony that he was unable to
apply for asylum in the USA after one year?
(c) Was
it reasonable for the Board to rely on evidence regarding the PA’s mother in
order to draw an adverse inference?
(d) Did the Board make unreasonable
implausibility findings?
III. Standard
of Review
[14]
It
is well-established that decisions of the Board as to credibility are factual
in nature and are therefore owed a significant amount of deference. The
appropriate standard of review is a standard of reasonableness (Lawal v
Canada (Minister of Citizenship and Immigration), 2010 FC 558 at para 11;
Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR
315, 42 ACWS (3d) 886 (FCA) at para 4). Similarly, the weight assigned to
evidence and the interpretation and assessment of evidence are all reviewable
on a standard of reasonableness (NOO v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045 at para 38).
[15]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument and Analysis
A. Did
the Board Make Reasonable Credibility Inferences?
[16]
The
Applicants submit that the Board was unreasonable in basing its negative
credibility finding on the Applicants’ failure to produce documentary evidence
to show the existence of their grandfather’s farm. The Applicants argue that
the expectation that they would corroborate statements made under oath was
unreasonable. The Applicants submit that it is trite law that without valid
reason to doubt an applicant’s credibility it is an error for the Board to
require documentary evidence to corroborate an allegation (Maldonado v
Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA) at
para 5).
[17]
The
Respondent takes the position that it is not improper to expect the Applicants
to provide documentary evidence that should be reasonably available to them,
and that the onus remains on the Applicants to adduce sufficient evidence to support
their claim. The Respondent submits that this Court has held that where a
claimant’s story has been found to be implausible or lacking in credibility, a
lack of documentary corroboration can be a valid consideration for the purposes
of assessing credibility (Bin v Canada (Minister of Citizenship and
Immigration), 2001 FCT 1246, 213 FTR 47 at para 21).
[18]
At
the hearing, the PA explained that “the process to find the documents in Colombia is very long
and a long time had passed…” (Certified Tribunal Record (CTR) pg 537) so he
would not be able to get the documents. When asked, he clarified that he had
not attempted to obtain the documents.
[19]
The
Respondent is accurate in relying on the jurisprudence of this court to state
that the onus is on the refugee claimant to adduce sufficient credible and
trustworthy evidence to establish that there is a reasonable chance that the
claimant would be persecuted if returned to his country of origin. Certainly
in this case, it was open to the Board to come to the conclusion that the
Applicants had failed to satisfy this requirement. However, I do find the
Board’s logic puzzling with respect to the lack of documentation corroborating
either the existence of the farm, or the grandfather’s ownership of the farm,
which I agree was central to the narrative in terms of setting the scene of and
motive for the alleged persecution. The Board reasoned, starting at para 12 of
the reasons:
[12] The claimant’s
failure to provide the farm ownership documents raises a serious disbelief in
the panel’s mind as to whether his grandfather owned the alleged farm in Sonora. There is no persuasive
documentary evidence from reliable sources that suggests that the claimants’
grandfather owned a farm in Sonora where his problems with the
FARC took place. The documentary evidence does not indicated that their
family’s problems with the FARC took place at their grandfather’s farm. The
onus is on the claimants to establish their claim.
[13] Therefore, based on the
evidence adduced, the panel disbelieves that the claimant’s grandfather owned a
farm in Sonora as alleged and, therefore, it
disbelieves that the alleged incidents of December 1994 and mid-June 1995 ever
took place. Since the panel disbelieves that the claimant’s grandfather owned
a farm, it disbelieves that the FARC demanded vacuna from the claimants’
family and as a result, it disbelieves that the claimants’ family received
threats from the FARC for failing to pay vacuna.
[14] The panel finds that the
claimants have fabricated their story about their fear of persecution at the
hands of the FARC guerrillas in Colombia.
[20]
This
reasoning is out of line with the body of case law of this Court and is
unreasonable in that it plants as the seed of incredibility the lack of
corroborating documentary evidence instead of using the lack of documentary
evidence to buttress an existing adverse credibility finding. The Board points
to no other reason to disbelieve the Applicants’ testimony. As the Respondent
argues, a lack of documentary evidence can be a valid consideration where a
claimant’s story has been found to otherwise lack credibility. For example, in
Bin, above, cited by the Respondent, Justice Denis Pelletier went
on to say at para 22:
[22] In the present case, the
applicant's claim had been discredited by a number of internal contradictions
and inconsistencies. It was therefore open to the CRDD to consider his failure
to produce corroborating evidence in further assessing his credibility […]
[21]
The
Board was entitled to find the Applicants’ explanation for failing to produce
the documents unreasonable. But the Board was not entitled to discredit the
Applicants’ entire claim solely on the basis of this failure. To do so would
be to ignore the oft-cited ratio of Maldonado, above.
[22]
Further,
the Board appears to have either ignored or misapprehended relevant evidence in
coming to the conclusion that the incident of mid-June 1995 did not occur. The
Applicants submitted a police report filed by their father. The report names
the Applicants and their parents and refers to an investigation of the massacre
of 13 individuals on June 23, 1995 in the township of Sonora. Clearly it
was an error to not even mention this evidence in coming to the conclusion that
the incidents referred to by the Applicants never occurred (Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, 83 ACWS (3d) 264).
[23]
This
constitutes a reviewable error. As Justice Michel Shore held
in Torres v Canada (Minister of
Citizenship and Immigration), 2011 FC 67 at para 26:
Canadian jurisprudence indicates that an
adverse finding of credibility must have a proper foundation in the evidence.
Credibility findings must be explained and must be supported by the evidence.
While the Board dismissed the plausibility of Mr. Ortiz Torres' narrative, it
made no specific reference to specific evidence to the contrary. Failure to lay
out a clear and specific evidentiary basis is unreasonable and the result is
that it renders each of the findings speculatory (Kanaphathipillai v Canada (Minister
of Citizenship and Immigration) (1998), 81 ACWS (3d) 859, [1998] FCJ 1110
(QL/Lexis); Ali v Canada (Minister of Citizenship and Immigration), 2003
FC 982, 125 ACWS (3d) 477; Armson v Canada (Minister of Employment and
Immigration) (1989), 9 Imm LR (2d) 150, 17 ACWS (3d) 322 (FCA)).
[Emphasis in original]
[24]
However,
in my view this error is not fatal to the Board’s overall decision. The
Applicants were required to show that they had both a subjective fear and a
well-founded objective fear. The Board went on to say at para 15:
[15] Even if the panel
were to believe the claimant’s story, (which it does not), there is no
persuasive evidence to suggest that the claimant and/or his sister were ever
personally targeted or threatened by the FARC while they lived in Colombia.
[25]
The
Board went on to find that the Applicants were never directly targeted by the
FARC, the Applicants’ conduct in the USA was inconsistent with a
subjective fear of persecution, and there was no evidence to support a well-founded
objective fear of persecution. In short, although I find the Board’s
credibility determination to be unreasonable, this was not the sole basis of
the Board’s rejection of the Applicants’ claim. The ultimate conclusion that
the Applicants are not Convention refugees has not been shown to be
unreasonable.
B. Did
the Board Err in Finding that the Applicants Could Have Applied for Asylum After
Being in the USA for More Than One Year?
[26]
The
Board found that the Applicants sojourn in the USA for over 12
years, where they stayed without making a claim for asylum, was demonstrative
of a lack of subjective fear. The Applicants submit that the Board was
unreasonable in rejecting their explanation for their failure to claim asylum.
The Applicants testified at the hearing that they initially did not have the
funds to apply for asylum, and that they were barred from doing so after having
spent one year in the USA without claiming. The Applicants argue
that the Board did not have the required expertise to find that there is no law
in the USA that
indicates that asylum claims cannot be filed after one year’s stay in the USA. The
Applicants posit that the Board’s role was not to comment on what the law in
the USA might be, but to assess the reasonableness of the Applicants’ actions
in light of the legal advice they received from a lawyer practicing immigration
law in the USA.
[27]
I
accept the Respondent’s submissions on this point. Contrary to the Applicants’
assertion that the Board lacks expertise regarding American asylum law, the
Refugee Protection Division’s own Responses to Information Requests for the USA
indicates that asylum seekers may still submit asylum applications under
different categories or conditions even after failing to submit an asylum claim
within one year of arrival in the USA. This information is known to the Board
and is available to the public. It was not unreasonable for the Board to
reject the Applicants’ explanations for why they failed to seek asylum status
in the USA before
coming to Canada, over 12 years after fleeing Colombia.
C. Was
the Board Unreasonable in Relying on Evidence of the Applicants’ Mother’s Conduct?
[28]
The
Applicant submits that the Board unreasonably focused on the Applicants’
mother’s return to Colombia to find that the Applicants lacked both a
subjective and objective fear of persecution as she is not a party to the
claim. The Applicants argue that the Board erred in using the actions of their
mother to impugn the Applicants’ credibility.
[29]
The
Respondent submits that since the Applicants put forward the fact that their
mother is hiding in Colombia in and effort to bolster their claims, it was
reasonably open to the Board to consider their mother’s two-time reavailment to
Colombia while she was living in the USA, her failure to seek refuge in a safe
third country after being deported from the USA, the lack of medical evidence
to corroborate the Applicants’ claim that she returned to Colombia to treat her
ailing mother, and the lack of any persuasive evidence to indicate that she had
been targeted by the FARC since being deported to Colombia in 1997.
[30]
In
my view, the Board did not use the mother’s actions to impugn the Applicants’
credibility, rather they viewed the mother’s actions as indicative of a lack of
objective fear of persecution in Colombia. As the Respondent
submits, the Applicants cannot argue on one hand that the FARC is extremely
sophisticated and able to find anyone of interest, and on the other hand, argue
that their testimony regarding their mother’s experience in Colombia should be
shielded from scrutiny and that it is irrelevant that she has not been
contacted by the FARC in the 13 years she has been back in Colombia. The
Applicants have failed to persuade me that the Board has made a reviewable error.
D. Did
the Board Make Unreasonable Implausibility Findings?
[31]
In
addition to the above arguments, the Applicants also submitted further
illustrations of error on the part of the Board. For example, the Board was
not convinced that the FARC would be interested in targeting the Applicants due
to police reports made by their father because their father never explicitly mentioned
the FARC in these denunciations. The Applicants disagree with this
assessment. With respect, the remainder of the Applicants’ arguments amount to
simply that - disagreement with how the Board chose to weigh the evidence.
Admittedly I have expressed reservations about the Board’s reasoning with
respect to the credibility of the Applicants’ subjective fear, nonetheless, a
reading of the overall decision reveals that the Board was simply not satisfied
that the Applicants’ discharged the onus of persuading the Board that there was
more than a mere possibility that they would be persecuted should they be
returned to Colombia. Arguably the Board could have come to this conclusion
irrespective of the credibility of the Applicants. The Applicants were unable
to provide evidence that they had ever been, or ever would likely be, directly,
personally targeted by the FARC. Although I might have chosen to write the
decision differently, or placed greater or lesser emphasis on certain pieces of
evidence, it remains that the Board’s conclusion falls within the range of
possible outcomes defensible in respect of the facts and law. As such there is
no reason for this Court to intervene.
V. Conclusion
[32]
No
question to be certified was proposed and none arises.
[33]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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