Date: 20110708
Docket: IMM-6855-10
Citation: 2011 FC 851
Ottawa, Ontario, July 8, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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CLAUDIA ELENA OSORIO MEJIA
KAREN LORENA MUNERA OSORIO
BRANDON MUNERA OSORIO
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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 pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on
September 29, 2010 by the Refugee Protection Division of the Immigration and
Refugee Board wherein the applicants were found not to be Convention refugees
or persons in need of protection.
BACKGROUND
[2]
Claudia
Elena Osorio Mejia is the principal applicant and the mother of the two minor
applicants. All three applicants are citizens of Colombia. In
September 2001 the principal applicant returned to Colombia after having
lived in the United
States
for over one year on a visitor’s visa. Upon her return she lived in her
parent’s home together with her sisters, nephew and two children. She says she
immediately began to receive telephone calls from a person who identified
himself as a member of the Revolutionary Armed Forces of Colombia (FARC). He
demanded one million pesos for protection of her family but did not give a
deadline with respect to when it should be paid. The applicant suspected she
was targeted for extortion because she had family members living in the USA and was therefore
perceived to have access to resources. In October of that same year, the FARC
forced their way into her parents’ home and terrorized her parents, sisters and
nephew.
[3]
The
applicant left Colombia on February 15, 2002 and went back to the United
States.
Four months later, on June 8, 2002, her children flew to meet her. After her
visitor’s visa ran out she entered into an arranged marriage of convenience for
a fee. Her husband disappeared before her permanent residence papers could be
finalized. Her conditional permanent residence status was thus cancelled by U.S. immigration
at which point she came to Canada and applied for refugee protection here.
DECISION UNDER REVIEW
[4]
The
Board did not find the material aspects of the principal applicant’s story to
be credible nor did it find her fear well-founded. It found the timing of the
FARC call to be not credible, namely because it came so shortly after she
returned to Colombia. Further,
she admitted that no deadline was imposed on the payment of the extortion
money. The Board also did not believe, on a balance of probabilities, and based
on the Board’s National Documentation Package, that should the applicant and
her children return to Colombia, eight years after she
left, that they would be targeted by the FARC.
[5]
Furthermore,
the principal applicant did not file a claim for asylum in the seven years and seven
months she lived in the United States because she said she
had a tourist visa that lasted five years. The Board found that if she were
truly in fear of imminent deportation by the end of the fifth year, she would
have looked into filing an asylum claim in order to prevent deportation.
Finally, the Board drew an adverse inference from the fact that when her
parents and two sisters left Colombia for the United States in November 2001,
the principal applicant voluntarily stayed behind to arrange for someone to
look after their properties. She left the country three months later. The Board
considered that someone who truly fears persecution would flee at their first
opportunity.
ISSUES
[6]
The
determinative issue is whether the Board reasonably concluded that the
principal applicant’s story was not credible or based on a well-founded fear of
persecution?
ANALYSIS
Standard of Review
[7]
The
Refugee Protection Division of the Immigration and Refugee Board is a
specialized tribunal which is owed deference by this Court, especially insofar
as their findings concern the plausibility of testimony and the credibility of
an account: Aguebor v. Canada (Minister of Employment and Immigration)
(F.C.A.) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886. Questions of
plausibility and credibility are factual in nature (Wu v. Canada (Citizenship
and Immigration), 2009 FC 929 at para. 17) and intervention is only warranted
if the decision does not fall within a range of “possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. at para. 47.
Did
the Board reasonably conclude that the principal applicant’s story was not
credible or based on a well-founded fear of persecution?
[8]
Whether
the Board reasonably concluded that the principal applicant’s story was not
credible or based on a well-founded fear of persecution requires the Court to analyse
the Board’s findings with respect to: (a) the applicant’s credibility; (b) the
applicant’s delay in seeking protection; (c) the likelihood that the FARC would
have a continued interest in targeting her; and (d) the Board’s appreciation of
the documentary evidence.
(a)
Credibility
[9]
It
is well established that when assessing the credibility of a refugee claimant,
the Board is entitled to rely on criteria such as rationality and common sense:
Shahamati v. Canada (Minister of Employment and Immigration) (F.C.A.),
[1994] F.C.J. No. 415 (QL) at para. 2; Kabuyamulamba-Kabitanga v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 351, [2002] F.C.J. No. 462 at
paras. 28-29.
[10]
The
applicant alleged that she received a threatening phone call from the FARC in
September 2001 demanding she pay them one million pesos. The Board found it curious
that the alleged call came almost immediately following her return to Colombia
from the United
States.
Given the timing of this call, it was reasonable for the Board to doubt the
credibility of this allegation. Related to this finding is the admission the
applicant made at the hearing: that the FARC did not impose a deadline for the extortion
monies. It was reasonable for the Board to conclude that a deadline for payment
is a “crucial element of an extortion demand” as the deadline serves to effectively
trigger the threat. This was a conclusion grounded in common sense and
rationality.
[11]
The
credibility of the applicant’s story was further undermined by the lack of any
objective, corroborating evidence about the alleged extortion attempt. The
applicant argues that the lack of corroboration should have been relevant only
to a state protection finding. I agree that documentary evidence of a complaint
to a police authority is, strictly speaking, merely evidence of the statement
by the claimant to the police. It does not corroborate the occurrence of the
alleged events. Nonetheless, documentary evidence of a complaint is at least a
contemporaneous record which would have some value in supporting a claim that
the events had occurred as claimed. Here, the Board was looking for anything
that would provide such support.
[12]
When
a refugee claimant’s credibility is already called into question it is
justifiable for a Board to draw a negative inference from his or her failure to
corroborate material elements of their story: Karadeniz v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1246 at para. 32; Muchirahondo
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 546 at para. 18; Oritz-Juarez
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 288 at para. 7. Here, the
applicant submitted no objective evidence to support her assertions of the
phone calls or of the home invasion.
[13]
The
applicant submitted a notarized letter from the wife of her uncle with whom the
family lived during their alleged problems. The letter stated that the reason
the applicant left for the U.S.A. was because of threats made against her in
Colombia. Such
letters often come from family and friends close to the persons affected by the
claimed events as only they may have personal knowledge of what had occurred.
However, in the circumstances of this matter and given the applicant’s already
impugned credibility it was not unreasonable for the Board to discount the
letter.
(b)
Delay
[14]
This
Court has held that delay in seeking refugee protection is an important factor
to consider when weighing a claim for refugee status: Heer v. Canada
(Minister of Employment and Immigration), [1988] F.C.J. No. 330 (F.C.A.)
(QL); Gamassi v. Canada (Minister of
Citizenship and Immigration) (2000), 194 F.T.R. 178. Delay points to a
lack of subjective fear of persecution or negates a well-founded fear of
persecution. This is based on the rationale that someone who is truly fearful
would claim refugee status at their first available opportunity: Espinosa v.
Canada (Minister of
Citizenship and Immigration), 2003 FC 1324 at para. 16;
[15]
Recently,
in Jeune v. Canada (Minister of
Citizenship and Immigration), 2009 FC 835 at para. 15, this Court found
that the applicant’s failure to claim asylum at his first opportunity further
undermined his credibility. The same is true in the case at bar. The principal
applicant remained in the United States for seven years. For
five of those years she had a tourist visa. After the visa expired she still
took no steps to seek protection in the United States. It was
reasonable for the Board to expect that “if she were truly in fear” of being
deported, she would have looked into the matter of filing an asylum claim as
soon as possible. There is no reasonable explanation on file as to why she did not
do this, other than her attempt to resort to a marriage of convenience.
[16]
The
applicant submits that the Board erred in reciting the chronology of events
which took place during her sojourns in the U.S. I agree that
the Board mistakenly referred to the expiry of her visitor’s visa and her
attempts to rely on a marriage of convenience as happening earlier rather than
in 2005 and 2006. The Board got the chronology straight at the beginning of the
decision but then conflated the history in a later paragraph. This error was
not material to its decision.
[17]
The
applicant delayed in fleeing Colombia. She testified at the
hearing that she stayed behind when her parents and sister fled because she had
to arrange to have their properties looked after and to find a place in
Medellin where her children would be safe as they did not have travel documents.
The Board relied on the applicant’s statement about the properties to draw a
negative inference about her subjective fear. While this part of the decision
could have been better written to acknowledge her additional concern about the
children, the decision as a whole was not erroneous as the applicant had given that
evidence. It was open to the Board to draw from her evidence that her principal
reason for delaying was to manage the three apartments.
(c)
The
FARC’s Lack of Continued Interest in the Applicant
[18]
Although
not dispositive of this application, it is worth pointing out that the
applicant has been away from Colombia for 8 years and no
evidence was submitted as to how she may still be of interest to the FARC if
she were to return. When asked about this in the hearing, the applicant said
she could be tracked down by her father’s name and documents. It was not clear
what she was referring to respecting documents. However, no documents were
submitted and it was admitted by the applicant that her last name was a very
common name in Columbia.
(d)
An
Appreciation of the Documentary Evidence
[19]
The
applicants contend that the Board erred in examining all of the documentary
evidence and intentionally drew certain references from the material that was
unfavourable to the applicant’s claim. There is no basis for this assertion as
it is clear from the decision that the Board considered the evidence as a whole.
[20]
Ultimately,
this application fails because of the applicant’s lack of subjective fear
evidenced by her delay in claiming protection, her lack of credibility and her
failure to produce corroborating evidence to support her story. It falls within
the range of acceptable outcomes defensible in respect of the facts and the
law.
[21]
The
application is dismissed. No questions were proposed for certification and none
will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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