Date: 20110630
Docket: IMM-6480-10
Citation: 2011 FC 808
Toronto, Ontario, June 30,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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JOSE DAVID URREA BOHORQUEZ
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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]
Jose David
Urrea Bohorquez is a real estate appraiser from Bogota, Colombia, who claimed
to have been targeted by members of the Revolutionary Armed Forces of Colombia
(or “FARC”) after he refused to inflate the value of a property that he was
appraising. Member Lim of the Refugee Protection Division of the Immigration
and Refugee Board rejected his claim for refugee protection, finding that material aspects of his story were not
credible.
[2]
While
recognizing that the Board is entitled to deference in relation to its
credibility findings, for the reasons that follow I am satisfied that the
Board’s decision was unreasonable.
Analysis
[3]
There are
three areas where the Board’s credibility findings are simply not reasonable.
i) The Finding that Mr.
Bohorquez’ Family had not been Targeted
[4]
One of the
reasons cited by the Board for not believing that FARC was after Mr. Bohorquez
was the fact that none of his family members in Colombia had been confronted by
FARC representatives looking for Mr. Bohorquez after he left the country.
[5]
It is true
that Mr. Bohorquez testified that his father, brother and sister had not been
contacted by FARC after he left Colombia.
There was, however, evidence before the Board that in May of 2010 Mr.
Bohorquez’ mother received a threatening telephone call from an individual
apparently calling on behalf of FARC who was looking for Mr. Bohorquez. Mr.
Bohorquez’ mother was so frightened by the call that she too fled Colombia and sought refugee protection
in Canada. This evidence appears to
have been overlooked by the Board.
ii) The Member’s Finding
Regarding the Colombian
Land
Registry System
[6]
Another
reason cited by the Board for rejecting Mr. Bohorquez’ claim was the statement
attributed to him that FARC needed his help as it would have had difficulties
finding out who owned the property that he was appraising. According to the
Board, FARC could simply have used the land registry system to find out who
owned the land in issue if it wanted to take control of the property.
[7]
First of
all, there was no evidence before the Board as to the workings of the Colombian
land registry system and this was not something of which the Board could take
official notice.
[8]
A more
fundamental problem with the Board’s finding is the fact that the member either
did not understand, or ignored, Mr. Bohorquez’ explanation that the owner of
the property had filed for bankruptcy, and that control of the property in
question was in the hands of a bank. As a result, knowing who the registered
owner of the property was would not have assisted FARC.
iii) FARC’s Ability to Find Mr.
Bohorquez in Bogota
[9]
The Board
also found that FARC would not have either “the inclination or the ability to
track down [Mr. Bohorquez] if he were to return to Bogota”.
[10]
To the
extent that the Board’s finding regarding FARC’s “inclination” was based upon
its belief that the group had made no efforts to contact Mr. Bohorquez’ family
after he left Colombia, that finding is tainted by the Board’s failure to
consider the threat received by Mr. Bohorquez’ mother in 2010.
[11]
Insofar as
FARC’s “ability” is concerned, it is clear that this finding is based upon a
selective reading of the country condition information before the Board. For
example, a February, 2010 Immigration and Refugee Board “Response to
Information Request” states that FARC is “absolutely capable” of pursuing
someone if the person warrants the interest of the group.
[12]
The
document goes on to say that “Colombia’s illegal armed groups … have
access to private bank records and credit card activities. They can track
someone down based on their paper trail. They can eavesdrop on family members
to determine where a target is located, or bribe acquaintances and neighbours
for information”.
[13]
It is true
that the Board is not required to refer to every piece of evidence in the
record, and will be presumed to have taken all of the evidence into
consideration. However, this is a case where evidence that was not mentioned
related directly to a finding by the Board and was contrary to its conclusion.
In the circumstances, it was incumbent on the Board to address it: see Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 at paras. 15-17.
Conclusion
[14]
Each of
the errors identified in these reasons materially affects the Board’s
conclusion that Mr. Bohorquez is not at risk in Colombia. When the errors are taken together, it
is clear that it would not be safe to allow the Board’s decision to stand. As a
consequence, the application for judicial review is allowed.
Certification
[15]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is allowed, and the matter is remitted to a differently
constituted panel of the Board for re-determination; and
2.
No serious question
of general importance is certified.
“Anne Mactavish”
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