Date: 20110624
Docket: IMM-5544-10
Citation: 2011 FC 749
Ottawa, Ontario, June 24,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ADRIANA MARTINEZ CAICEDO; JOAN JOSE ZAPATA; JOSE
DOMINGO ZAPATA LONDONO; KIMBERLY LORYET PULIDO
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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
applicants seek an order setting aside a September 2, 2010 decision of the
Refugee Protection Division of the Immigration Refugee Board (the Board), which
found the applicants to be neither Convention refugees nor persons in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA).
[2]
In
my view, the credibility findings with respect to the principal applicant (Adriana Martinez Caicedo,
hereinafter the applicant) are not supported by the evidence and are hence unreasonable.
Specifically, the Board failed to make clear and unequivocal credibility findings
regarding a key incident of the alleged persecution, the kidnapping of the
applicant’s father. For these reasons, the application is granted.
Facts - The Female
Applicant
[3]
The
applicant and her husband Jose Domingo Zapata Londono (the male applicant) are
both citizens of Colombia. The two minor claimants, Kimberly and Joan,
are citizens of the U.S.
[4]
The
four applicants came to Canada at different times in 2008 and made claims
for refugee protection.
[5]
The
applicant left Colombia in 1991 and went to the U.S. At this
time she did not fear any persecution in Colombia. The
applicant stayed in touch with her family in Colombia and told them she wanted
to return to Colombia. The
applicant learned that her grandmother was subjected to extortion by the Revolutionary
Armed Forces of Colombia (FARC) because she was a wealthy livestock owner. The
applicant had no status in the U.S., but she felt it was not safe to return to
Colombia while the
FARC were targeting her family.
[6]
In
1998, the applicant met her husband, who was also a Colombian citizen living in
the U.S. The
applicant remained in the U.S. in the hope that there would be an amnesty and she
and her husband could regularize their status in the U.S.
[7]
In
2002, the applicant’s second child was born. She wanted to return to Colombia to raise her
children, but her family remained adamant that it was not safe for her to
return. The adult applicants consulted a group called Caridades Catolicas, a
Catholic charity, but were told that they could not seek asylum in the U.S. because they
had been living there too long.
[8]
In
July of 2007, the applicant learned that her grandmother had died. The
applicant and her father inherited the estate, and her father took over
administration of the ranch as the applicant was still in the U.S. In October
2007, the applicant’s father was said to have been kidnapped by the FARC
because he refused to keep paying the “war tax” that the applicant’s
grandmother had been paying. The applicant’s half-sister filed a report about
their father’s kidnapping to Fiscalia (Fiscalia General de la Nacion is the
office of the Attorney General in Colombia, and has responsibility
for investigating and prosecuting crimes). Following her father’s kidnapping,
the applicant decided to seek refuge in Canada.
Facts - The Male Applicant
[9]
The
male applicant, Jose Domingo Zapata Londono, was a soccer player who grew up in
Colombia. According
to his Personal Information Form (PIF) he began having problems with the FARC around
age of 21. He was approached by a man who said he was a representative of the
FARC. This man explained that the FARC had interests in a few soccer teams and
they wanted to recruit the male applicant and for him to use his influence with
his colleagues to recruit them as well. He received many calls from FARC
representatives and grew afraid as a result of the pressure they were putting
on him. The male applicant stopped playing soccer but continued to face
pressure from the FARC. As a result, the male applicant fled to the U.S. in 1985. He
remained in the U.S. until he came to Canada with the
applicant.
The Decision Under
Review
[10]
The
Board decided each family member’s claim separately. The Board found that the
minor applicants were born in the U.S. and that there was no allegation of a
fear of persecution in the U.S. Thus, the minor applicants were not
refugees.
a) The Male Applicant
[11]
The
Board found that the determinative issue was credibility. The adult applicants’
actions were not consistent with a well-founded fear of persecution. The male
applicant was in the U.S. for 23 years and made no attempts to seek
protection during this time. The Board also noted that the male applicant did
not seek protection when he resided in Mexico, even though
Mexico is a
signatory of the Refugee Convention. The Board found that the male applicant
did not provide sufficient detail about the alleged attempts by the FARC to
enrol him, and that his testimony was, in some aspects, inconsistent. Finally,
the Board noted that the male applicant omitted an important detail from his
PIF, the fact that he was in hiding in the year before he left Colombia. For these
reasons, the Board found that the male applicant was not credible.
b) The Female Applicant
[12]
The
Board began its analysis of the principal applicant’s claim by noting that this
claim was not purely a sur place claim, as she testified that her fear
of the FARC began in 1994 or 1997 (the Board was not sure), when she called her
parents about plans to visit and they told her not to. The principal applicant
also testified that she saw a lawyer in 2002, so she must have had some fear in
2002.
[13]
The
Board accepted that the principal applicant was advised that she could not make
a claim because she delayed more than a year, but concluded that “the one year
delay is not absolutely fatal and there are enough exceptions to it and one of
the exceptions is change of circumstances, and this is possibly a case of
change of circumstances”. The Board found that there would have been time for
her to go visit a lawyer and make a claim after her father was kidnapped in
2007. Instead, she remained in the U.S. for another year
without any status. If the principal applicant was truly afraid, she would
have made some attempts to normalize her status following her father’s
kidnapping.
[14]
The
Board found that there was no evidence that the principal applicant’s mother
and sister faced any threats, as similarly situated people in Cali.
[15]
If
the principal applicant’s father was kidnapped for economic reasons or a criminal
vendetta, then this did not create a nexus to the Convention. The Board
expressed concerns regarding the documentation submitted to establish the
father’s kidnapping. The only documentation regarding the kidnapping is the
mother’s affidavit and an alleged confirmation from the Fiscalia, which has no
address, no telephone number and no fax number. With respect to the
confirmation from Fiscalia, the Board was not certain how much weight it could
give to that document. For these reasons, the Board concluded that the
principal applicant had not established a well-founded fear of persecution.
The Issues
[16]
The
applicants raised seven issues in their memorandum of argument, and eight
issues in their further memorandum. For the purposes of this judgment however,
I need address only the following:
a. Did the Board
ignore evidence or make unreasonable findings of fact?
b. Are the Board’s
credibility findings unreasonable?
c. Was the Board’s
sur place analysis unreasonable?
d. Was the Board’s
finding that there was no nexus to the Convention unreasonable?
Standard of Review
[17]
It
is established law that credibility findings and findings of fact are reviewed
on the reasonableness standard: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 46. Analysis of the sur
place claim and nexus to a Convention ground are also reviewed on a reasonableness
standard: Girmaeyesus v Canada (Citizenship and Immigration), 2010 FC 53
and Mejia v Canada (Citizenship and
Immigration), 2010 FC 530 at para 10.
Analysis
a) The Board’s Credibility
Findings are Unreasonable
[18]
The
applicants assert that the Board’s analysis of similarly-situated individuals
ignores the disappearance of the applicant’s half-sister. The applicant’s
first PIF states that “my half-sister, who was spearheading a push to
investigate for my father, later disappeared”. Her second PIF lists her
half-sister as missing, in the “family information” section of the form. However,
the second narrative simply states that “my half-sister and my mother went to
the Fiscalia to file a report about the kidnapping of my father”, with no
mention of the half-sister’s disappearance. During the hearing, neither the
member nor the applicant’s counsel asked any questions regarding the
applicant’s half-sister. As a result, the only mention of the half-sister in
the transcript is at page 288 of the Certified Tribunal Record, where the
applicant confirms that her half-sister lives in Cali.
[19]
While
it is unfortunate that the issue of the half-sister’s disappearance was not
dealt with at the hearing, the Board’s failure to question the applicant
regarding a highly material fact raises the concern that the Board simply
failed to notice the references to the half-sister’s disappearance in the
PIFs. Where all parties ignored what appears to be a potentially material
fact, the Board’s failure to deal with that fact is not a reviewable error.
[20]
The
Board found that the applicant did not have subjective fear because she did not
attempt to normalize her status in the U.S. after
discovering her father had been kidnapped.
[21]
The
Board accepted that the applicant was ineligible to claim refugee status in the
U.S. due to the one-year bar but speculated that this bar is not “absolutely
fatal”, and she might “possibly” fit into the exceptions. There was no indication
regarding the nature of the exceptions, whether the applicant had any knowledge
of them, or as to their consequences for the applicant.
[22]
It
was thus unreasonable for the Board to find that the failure to seek further
legal advice regarding exceptions to the one-year bar was not consistent with
her subjective fear. I note that the Board accepted the applicant’s testimony
that she believed she was ineligible for protection in the U.S. The Board’s
conclusion that the possibility that the applicant might qualify under an
exception to the one-year bar is speculative at best. The material point is
that the applicant had a cogent explanation which was not questioned. It is a
reviewable error for the Board to make a negative credibility finding on the
basis of a speculative inference that is not supported by the factual record: Frimpong
v Canada (Minister of Employment and Immigration) [1989] FCJ No 441.
b) Ambiguity Concerning a Key
Element
[23]
The
Board failed to make clear findings regarding the applicant’s father’s
kidnapping. In the often-cited Federal Court of Appeal case of Hilo v
Canada (Minister of Employment and Immigration), [1991] FCJ No 228, Justice
Heald held that Immigration and Refugee Board members are required to make
credibility findings in clear and unequivocal terms:
The
appellant was the only witness who gave oral testimony before the Board. His
evidence was uncontradicted. The only comments as to his credibility are
contained in the short passage quoted supra. That passage is troublesome
because of its ambiguity. It does not amount to an outright rejection of the
appellant's evidence but it appears to cast a nebulous cloud over its
reliability. In my view, the Board was under a duty to give its reasons for
casting doubt upon the appellant's credibility in clear and unmistakable terms.
[24]
In
Hilo, the Court of Appeal was concerned that the Board concluded that
the claimant’s testimony was vague and inconsistent, but did not state what
details were missing or inconsistent. In the case at bar, the Board has made
the reverse error – the member has pointed out one specific deficiency in the
evidence, the lack of identifying information on the Fiscalia report, but did
not draw any conclusions regarding the kidnapping. The effect is the same as
in Hilo – the
applicant’s evidence that her father was kidnapped has not been rejected but
the Board has cast a nebulous cloud over its reliability.
[25]
The
Board noted “some concerns” regarding the documents submitted to support the
testimony that applicant’s father was kidnapped, and that it was not certain
how much weight it could give to the Fiscalia document. While the Board
discounted the Fiscalia report, it did not make clear findings regarding the
applicant’s testimony and her mother’s affidavit regarding the kidnapping. If
the Board did not accept the applicant’s testimony or the affidavit of her
mother, the Board was bound to say so and to give reasons for this. The Board
does not identify any omissions, contradictions or inconsistencies with this
evidence.
[26]
In
the result it is unclear whether the Board accepted that the applicant’s father
was kidnapped, or not. The father’s kidnapping is the culminating incident
that caused the applicants to seek refugee status. It is central to the
principal applicant’s claim. The Board was required to make clear findings on
this point, and its failure to do so amounts to a reviewable error.
c) Reviewable Error in Questioning
of Male Applicant
[27]
The
applicants argue that the male applicant was not afforded a chance to address
the credibility issues identified by the Board, including the omission from his
PIF and the lack of detail regarding how he was recruited by the FARC.
[28]
I
readily accept the Respondent’s argument that the onus to establish a claim
rests entirely with the claimant throughout the process. Here, however, the
Board asked a number of cursory questions, of limited precision, which the male
applicant answered. The member asked two questions concerning the delay, first
in Mexico, and then in
the United
States.
Answers were given which on their face, were plausible and no further questions
were asked. It is unreasonable to predicate a finding of credibility on the
basis that the applicant provided “scant detail”, when the questions themselves
did not prompt or demand details or greater elaboration than the witness
provided.
[29]
Again,
while I readily accept Mr. Doyle’s argument that delay of this duration would
usually be conclusive (see for example Espinosa v Canada
(Minister of Citizenship and Immigration), 2003 FC 1324
or Nyayieka
v Canada (Citizenship and Immigration), 2010 FC
690), in this case it is not clear on the face of the record why the
explanations for delay were not accepted. Certainly the answers provided, on
their face, provide a rational explanation. The member did not ask the male
applicant many questions. His questioning takes only three pages in the
transcript. The finding that he was not credible by reason of the lack of
detail cannot be sustained where no detail was called for or reasonably
expected as an integral response to the question.
d) Was the Board’s sur place Analysis
Unreasonable?
[30]
In
their further memorandum of fact and law, the applicants submit that the
Board’s sur place analysis is unreasonable. The applicant left Colombia in 1991 and
did not learn that her family was targeted by the FARC until 1998. The
applicant’s fear of the FARC arose after her departure from Colombia. Therefore,
her claim is entirely sur place, and the fact that she went to see a lawyer
in 2002 is of no relevance to the sur place analysis.
[31]
The
applicants take issue with the Board’s finding that the principal applicant’s
claim was not purely sur place. The respondent argues that the
principal applicant did not engage in any actions in the U.S. which would
give rise to a reasonable chance of persecution, and therefore she did not have
a sur place claim.
[32]
According
to the United Nations Handbook on Procedures and Criteria for Determining
Refugee Status (the UNCHR Handbook), a sur place refugee includes anyone
“who was not a refugee when he left his country, but who becomes a refugee at a
later date”.
[33]
I
agree with the applicants that the Board erred in saying that the principal
applicant’s claim was not purely sur place. The fact that she consulted
a lawyer while living in the U.S. has no bearing on the sur place nature
of her claim since her fear arose after leaving Colombia.
[34]
While
the Board may have misstated what a sur place claim is this error did
not affect the Board’s analysis. The Board proceeded to consider the principal
applicant’s claim as if it was a sur place claim, by analysing the
failure to claim in the U.S., the kidnapping of her father, and
similarly situated people. I do not think this miss-labelling error warrants
the intervention of the Court.
[35]
I
note in conclusion that if reliance on Girmaeyesus, above, is intended
to suggest that a person can only become a sur place refugee as a result
of actions they take while abroad, this is incorrect. A person may become a sur
place refugee due to a change in circumstances arising in his country of
origin during his absence, or as a result of his own actions, for example
associating with refugees who have already been recognized, or expressing
political views. Girmaeyesus happens to concern the second type of sur
place refugees but the case law is clear that a sur place claim can
arise as a result of events that took place in the claimant’s country of
citizenship as well.
e) Was the Board’s Finding that
there was no Nexus to the Convention Unreasonable?
[36]
The
Board found that the father’s kidnapping, if he was in fact kidnapped, was for
economic reasons, which did not create a nexus to a Convention ground. Nexus
is largely a question of fact, which is within the Board’s expertise to make: Prato v Canada (Minister of
Citizenship and Immigration), 2005 FC 1088 at para 9.
There is ample support in the case law that extortion for economic reasons may
not create a nexus to a Convention ground: Saint Hilaire v Canada (Citizenship
and Immigration), 2010 FC 178. Still other cases concluded that extortion
for war taxes, or extortion from paramilitary groups, for example: Ospina v
Canada (Citizenship and Immigration), 2010 FC 1035; Montoya v Canada (Minister of
Citizenship and Immigration), 2002 FCT 63 do not trigger
Convention grounds.
[37]
Given
the case law on this point and the facts before the Board regarding the nature
of the principal applicant’s fear, it was reasonably open to the Board to
conclude that there was no nexus between the father’s kidnapping and a
Convention ground.
[38]
Here,
however, the analysis did not follow the framework set forth in Canada (Attorney
General) v Ward [1993] 2 S.C.R. 689 and examine the issue from the perspective
of the persecutor, the FARC. In this case, given the close linkages, which
were not challenged, between the FARC, the extortion and the kidnapping, the
Board was obligated to at least examine the matter through the lens of Ward,
rather than dismissing it on the basis that wealth is not per se a Convention
ground.
f) The Board Should have Considered
Section 97
[39]
Having
decided there was no nexus to a Convention ground, the Board did not go on to
analyse whether the applicant might be a person in need of protection under section
97 of IRPA. In his further memorandum of argument, the respondent
argues that the Board did not err by failing to consider section 97 because the
applicant had only a generalized fear of the FARC, and did not satisfy the Board
that she faced a “personalized” risk of persecution, as required by Saint
Hilaire, above, at para 11.
[40]
In
this case, the applicant’s risk was based on her inheritance of the cattle
farm. The evidence before the Board was that the applicant’s grandmother was
targeted by the FARC, and then when she passed the cattle ranch on to her son,
he was kidnapped by the FARC for refusing to pay the war tax. The applicant
alleged she would be at risk as the owner of this cattle ranch as the FARC
seemed to continue to target whoever owned the ranch. This risk is sufficiently
personal to warrant at least a consideration of whether section 97 should
apply. There is no indication in the reasons that the member turned his mind
to whether the applicant was a person in need of protection under section 97.
Conclusion
[41]
The
Board’s findings regarding the minor applicants and the male applicant are
reasonable, and there are no grounds to warrant this Court’s intervention.
[42]
The
Board’s credibility findings with respect to the principal applicant are
unreasonable. Specifically, the Board’s finding that the principal applicant’s
failure to make a claim in the U.S. after being advised she was ineligible was
based on unreasonable speculation. More importantly, the Board failed to make
a clear credibility finding regarding the key incident of persecution, the
kidnapping of her father.
[43]
If
the Board did not believe that the kidnapping occurred the member should have
clearly stated so, and given reasons for rejecting the sworn testimony of the
principal applicant and the affidavit of her mother.
[44]
If
the Board decided that it was unnecessary to determine whether the kidnapping
incident was credible because there was no nexus to a Convention ground, then
the Board should have considered whether the principal applicant was a person
in need of protection under section 97 of IRPA. It was an error for the
Board to avoid drawing any conclusions on the kidnapping on the grounds of no
nexus to the Convention, without considering the application of section 97.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is granted.
2.
The
decision of the Board is set aside and the matter remitted to the Refugee
Protection Division of the Immigration Refugee Board for reconsideration before
a different member of the Board.
3.
There
is no question for certification.
"Donald
J. Rennie"
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