Date: 20110608
Docket: IMM-6497-10
Citation: 2011 FC 653
Ottawa, Ontario, June 8,
2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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GUSTAVO MENDEZ LOPERA
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Applicant
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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 October 7,
2010, concluding that the applicant is not a Convention refugee or person in
need of protection pursuant to sections 96 or 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (the Act) because the applicant was
not credible and did not have a subjective or objective fear of persecution in
Colombia.
FACTS
Background
[1]
The
applicant, a citizen of Colombia, arrived in Canada with his mother on February
3, 2009, and claimed refugee protection. He was 16 years old at the time (his
birth date is April 23, 1992). His claim was joined to the claims of his
sister, Andrea Catalina Mendez Lopera, and her husband and daughter.
[2]
The
applicant testified that he fears persecution by the Revolutionary Armed Forces
of Columbia (FARC), who have targeted him as a result of his relationship to
his mother and sister.
[3]
In 2004,
the applicant’s sister, a physiotherapist, along with her mother and other
medical professionals, registered a foundation, FUNDEPRO, to provide healthcare
and social services to underserved people in the family’s region of Colombia, Tolima. Their organization
was involved, among other things, in a government vaccination campaign in the
area. In the course of carrying out the vaccination campaign, the applicant’s
sister was kidnapped, along with other members of her organization, by the
FARC. The FARC wanted the sister’s medical services for the FARC “guerrillas”. All
but one of them was subsequently rescued by the Colombian army.
[4]
In the
months following the abduction, the applicant’s sister’s foundation began to be
regularly targeted by the FARC. They were the subject of threats, including a
time when their premises was raided and their medical equipment stolen, and
attempts to recruit them to work for the FARC. Although the applicant’s mother
contacted Colombian authorities, they could only suggest that the organization
cease its activities in rural areas.
[5]
As a
result of these threats, the applicant’s sister and mother fled to Bogota, where they attempted to
hide. While there, they learned that the FARC had ransacked their foundation
offices, kidnapped one of the doctors to work for them, and specifically
declared the applicant’s sister and mother to be FARC targets sentenced to die.
[6]
Because of
the highly credible threats, the applicant’s sister was forced to flee Colombia, leaving her sick daughter
and husband at home. In June of 2004, she fled to the United States, and was joined by her daughter and
husband four months later. She remained in the US illegally until 2008, when
she came to Canada and made the claim to which
the applicant’s claim was originally joined.
[7]
Meanwhile,
the applicant, his parents, and his younger sister went into hiding in the municipality of
Cundinamarca in Colombia. The applicant’s father was a retired Colombian
police officer, and insisted that they would not leave their country as a
result of threats from guerrillas. Moreover, the applicant’s younger sister
suffered from severe medical problems that made it impossible for her to leave Columbia.
[8]
After
spending two years in hiding, the applicant’s father determined that they were
unlikely to remain targets of the FARC. As a result, the family returned to
their hometown. They were not disturbed.
[9]
After
another two years, the applicant’s mother decided to reopen the foundation,
which the applicant stated she did in December of 2008. On December 16, 2008,
the applicant stated that a Christmas party hosted by the foundation was raided
by the FARC, who took all of their cash, medical equipment, and computers, and
told the applicant’s mother that they would have to pay a monthly sum of 2000
million pesos to the FARC.
[10]
The
applicant advanced his planned move to Bogota, where he
was enrolled in a university for studies in marine biology. His parents thought
he would be safe in Bogota. On December 29, 2008, the applicant stated
that his mother received a telephone call threatening the lives of the entire
family, including the applicant, should she fail to pay the money that they had
demanded.
[11]
The
applicant’s father conceded the danger and his parents moved to Bogota, where they
hoped to hide. They needed, however, to return regularly to their hometown in
order to see the applicant’s younger sister, who was hospitalized in a clinic
there.
[12]
On
January 13, 2009, the applicant’s sister was discharged from hospital. The
applicant’s parents therefore decided to move the entire family to Bogota on a
permanent basis. As a result, they rented an apartment, to which they intended
move on January 15, 2009. When they arrived at the apartment, however, they discovered
that it had been ransacked, and inside was a condolence card from the FARC with
each of the family member’s names on it. The applicant’s mother therefore
arranged for herself and the applicant to come to Canada. His father
remained in Colombia to be with
his sister, who was unable to leave because of her medical condition. Instead,
the family moved the applicant’s younger sister to a clinic in Cali that could
treat her. The applicant’s mother returned to Colombia to visit her
husband and sick daughter, but was in Canada on a visitor’s visa at
the time this application was made.
Decision under review
[13]
In
a decision dated October 7, 2010, the Board rejected the applicant’s claim for
refugee protection, but accepted the claims of the applicant’s sister and her
husband and daughter. With regard to the applicant, the Board found that the
applicant was not credible and that he did not have a subjective or objective
fear of persecution in Colombia:
¶11. The determinative issues in this
case are credibility, including subjective fear and whether the claimant’s fear
of persecution at the hands of the FARC has objective basis should he return to
Colombia today. In assessing this
claim, the panel considered the claimant’s sister’s oral and written evidence,
counsel’s written submissions and all of the documentary evidence entered as
exhibits at the hearing.
[14]
The
Board stated the law with regard to determinations of a claimant’s credibility.
It recognized that there is a presumption that testimony made under oath is
true, unless there is a valid reason to doubt its truthfulness, and stated that
“the real test” of credibility is whether the testimony accords with “the
preponderance of probabilities”. It held that it had to be persuaded that the
evidence is “probably” credible, and not just “possibly” so.
[15]
First,
with regard to subjective fear, the Board found that the applicant did not have
a subjective fear of persecution based upon his sister’s activities because he
had remained in Colombia for four years after his sister fled, and his parents,
despite being subject to the same threats as those made against the applicant,
remain in Colombia, where his father continues to operate a taxi business.
[16]
The
Board further found that the applicant did not have a subjective fear based
upon his claim of renewed threats following his mother’s re-opening of the
Foundation in 2008, because the Board found that his mother had not, in fact,
re-opened the Foundation. The Board doubted that the Foundation had been
re-opened by the applicant’s mother because it found that there was no
documentary evidence in support of either the re-opening, or of the subsequent
threats or related incidents.
[17]
The
Board rejected the applicant’s explanations as to why he did not have the
documentary evidence. The Board found that because it has been one year since
he fled Colombia, and because the applicant’s father has remained in Colombia throughout
that time, the applicant should have been able to obtain documentary evidence
of the re-opening of the Foundation.
[18]
The Board
also rejected the applicant’s description of the ransacking of the apartment in
Bogota and the “condolence card”
that the applicant stated was left there. Again, the Board found that the
absence of documentary evidence was problematic, and was not satisfied with the
applicant’s explanations for why he did not have corroborating documents. The
panel concluded that the applicant’s story was fabricated, and, therefore, that
he did not face a subjective or objective fear of persecution in Colombia:
¶21. Therefore,
based on the evidence adduced, the panel is not persuaded to believe that the claimant’s
family moved to Bogota into a rental apartment as
alleged and the panel disbelieves that FARC vandalized their apartment in Bogota. The panel finds that the
claimant has fabricated his story about the re-opening of the Foundation and
being threatened by the FARC for non-payment of extortion to bolster his
refugee claim in Canada. The panel finds that the
FARC was only interested to harm the claimant’s sister and other medical
professionals who worked with her at the FUNDEPRO for not providing their
services to wounded guerrillas.
LEGISLATION
[19]
Section
96 of the Act,
grants protection to Convention refugees:
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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
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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.
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[20]
Section 97
of the Act grants protection to persons whose removal from Canada would subject them personally
to a risk to their life, or of cruel and unusual punishment, or to a danger of
torture:
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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.
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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.
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ISSUES
[21]
The
applicant’s submissions raise the following two issues:
a.
Did the
Board fail to consider relevant evidence?
b.
Did the
Board err in drawing a negative inference from the lack of corroborating
documentary evidence in the applicant’s claim?
STANDARD OF REVIEW
[22]
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”: see also Khosa v. Canada (MCI), 2009 SCC 12, per Justice Binnie at
para. 53.
[23]
Dunsmuir and Khosa establish that
issues of fact or mixed fact and law are generally to be reviewed on a standard
of reasonableness. The Board’s determinations of credibility and of fear of
persecution are to be reviewed on a standard of reasonableness: Wu v. Canada (Citizenship and Immigration), 2009 FC 929, at para. 17; Aguirre
v. Canada (Minister of Citizenship
& Immigration),
2008 FC 571 at para. 14.
[24]
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, supra, at paragraph 47; Khosa, supra,
at para. 59.
ANALYSIS
Issue 1: Did the Board fail to consider relevant
evidence?
[25]
The
applicant submits that the Board erred by drawing negative inferences from some
facts without regard to the applicant’s explanations for them. In particular,
the Board concluded that the applicant did not have a subjective fear of
persecution in part because the applicant and his parents remained in Colombia. The
applicant submits that in so concluding, the Board ignored the applicant’s
testimony and written submission regarding his unique family circumstances,
including his father’s determination to stay and his younger sister’s medical
condition that prevents her from traveling. Moreover, both the applicant and
his sister had testified that their mother no longer lives in Colombia, but
frequently visits. The applicant submits that his parents’ circumstances do not
undermine his own fear of persecution or the well-foundedness of his fear.
[26]
The
respondent submits that the Board was reasonable in finding that the fact that
the applicant and his parents remained in Colombia after his sister fled, and
that the applicant’s parents continue to live and work in Colombia is
inconsistent with a subjective fear of persecution.
[27]
The
Court agrees with the applicant that the Board failed to consider the whole of
the evidence which explains why the applicant and his parents remained in Columbia. In
particular, the Court finds that the Board ought to have considered that the
applicant’s parents remained in Colombia to care for his very sick sister, who
was in a medical centre and medically unable to travel by airplane. The Board
also failed to consider that the applicant’s family remained in hiding for two
years, or ultimately fled their hometown, both of which showed a subjective
fear of persecution. Also the Board failed to recognize that the applicant was
only 12 years old in 2004, and not in a position to leave his parents.
[28]
Despite
these oversights, however, the Court finds that the Board’s statements
regarding the behaviour of the applicant and his parents were not determinative
of the applicant’s claim. In fact, the applicant himself testified that his
family had believed that by hiding for years following his sister’s departure
they would be safe. The applicant testified that it was only once threats
resumed after his mother re-opened the Foundation that the family determined
that they all had to flee. Thus, the determinative issue was the Board’s
finding that the applicant had not been targeted by the FARC since his sister
fled, and that his story of his mother’s re-opening the foundation and
subsequent threats including the ransacking of the apartment, were fabricated.
Issue 2: Did the Board err
in drawing a negative inference from the lack of corroborating documentary
evidence in the applicant’s claim?
[29]
The
applicant, relying Ahortor v. Canada (Minister of
Employment & Immigration), (1993), 65 F.T.R. 137 (Fed. T.D.),
submits that the Board could not draw a negative inference from the mere fact
that the applicant failed to produce any extrinsic documents to corroborate his
story of the re-opening of the Foundation in 2008 or the threats that followed.
The applicant submits that the Board further erred by failing to consider the
applicant’s sister’s testimony, which corroborated the applicant’s story.
[30]
The
respondent submits that it is open to the Board to draw a negative inference
from the fact that the applicant did not have documents that he could be
expected to have, and did not have satisfactory explanations for their absence.
The respondent quotes Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 288, at paragraph 7, where
Justice Phelan stated that “The requirement for corroboration is only a matter
of common sense.” In this case, the Board sought the applicant’s explanations
for the absence of any documentary corroboration, and rejected those
explanations as not credible.
[31]
Whether
corroborative evidence can reasonably be demanded depends upon the facts of
each case. In Juarez, Justice Phelan found that the corroborative
evidence could reasonably have been expected to be available to the applicants
in that case, and so the Board in that case was reasonable to draw a negative
inference as a result of its absence. In contrast, in Ahortor the Board
impugned the applicant’s credibility on the basis of inconsistencies that were
not supported by the evidence in that case. The Board in Ahortor failed
to consider the applicant’s explanations for the apparent inconsistencies, and
Justice Teitelbaum found that the Board had provided no valid reason for
doubting the applicant’s credibility: Ahortor at paragraphs 43 and 44.
[32]
In
this case, it was reasonable for the Board to expect some corroborating
evidence. The Board stated that the applicant’s sister had extensive
documentation regarding her involvement in the founding and operation of the
Foundation, and regarding the threats and attacks that she had experienced. In
contrast, the Board noted that there was no documentary evidence whatsoever of
the applicant’s mother re-opening the Foundation, the family’s rental of the
apartment in Bogota, or the
threats apparently received by the family thereafter. The Board considered the
applicant’s explanation for the absence of such documents—namely that he and
his mother had fled in such a hurry that they could not obtain them—but found
that these explanations were “vague” and not reasonable. The Board held that
given the fact that the applicant’s father remains in Colombia, they should
be able to get some documentation.
[33]
While
it is true that the Board failed to consider the corroborating testimony of the
applicant’s sister, the Court finds that the sister’s testimony on these points
was no different from the applicant’s. The sister provided no additional
information or explanation, and her evidence was hearsay. As a result, the
Court finds that the Board’s failure to specifically recognize that his sister
had corroborated the applicant’s testimony is not an error.
[34]
The
ransacking of the apartment and the “condolence card” would have been
documented if true. Especially not having the condolence card is a gapping
hole in the applicant’s story – it is the “smoking gun” which should have been
produced.
CONCLUSION
[35]
The
Board stated that the determinative issue before it was credibility, and found
that the applicant had fabricated the central elements of his claim to have a
fear of persecution in Colombia—namely, the fact that
his mother had re-opened the Foundation and that his family had subsequently
been threatened as a result. Although the Board failed to consider some
evidence on subjective fear, this was not the determinative issue. The Court
therefore has no basis upon which to intervene.
CERTIFIED QUESTION
[36]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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