Date: 20110420
Docket: IMM-5296-10
Citation: 2011 FC 460
Ottawa, Ontario, April 20, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ALVARO SALCEDO REYES
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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 pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
Board), dated July 5, 2010, wherein the Board determined that the applicant was
not a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the IRPA. The Board found that the determinative
issue for the decision was the applicant’s credibility.
[2]
The
applicant is a citizen of Columbia and was born on July
18, 1986. He arrived in Canada on November 4, 2009 and applied for
refugee protection because of his fear of reprisals by the Revolutionary Armed
Forces of Columbia (the FARC).
[3]
In
2001, the applicant’s mother received threats from the National Liberation Army
(ELN), which asked her for contributions. When she refused to pay them, they
replied by stating that they knew where her son went to school and where they
lived. At his mother’s insistence the applicant fled to the United
States
in 2002 to live with relatives in Miami. His mother remained
in Columbia, but moved
from place to place.
[4]
The
applicant entered the U.S. on a tourist visa that was valid from May
10, 2000 to May 4, 2005, where he remained until August, 2005. Although he
entered as a tourist, the applicant completed high school while in the U.S.
[5]
The
applicant returned to Columbia in 2005 when his mother
thought that it was safe for him to do so. The applicant then began to work
with Maria Victoria Vargas who was a city councillor, a member of the Liberal
Party, and a friend of his father, who was also an active Liberal Party member.
The applicant helped at Ms. Vargas’ office and worked with local youth. Through
his work, the applicant claimed that he encouraged youth to focus on their
studies and not to join to the FARC.
[6]
As
a result of this work the applicant was contacted by two members of the FARC in
June 2008. They told him to stop working in a FARC controlled neighbourhood (Ciudad
Bolivar)
and to stop working with the Liberal party.
[7]
The
applicant discussed this incident with Ms. Vargas, his father, and his mother. All
of them encouraged him to be careful and so the applicant moved apartments and
went into hiding.
[8]
The
applicant then left for the U.S. in September 2008, where he remained until he
came to Canada in November
2009. The applicant decided to leave the U.S. and come to Canada because his
mother, by then an American resident, could not sponsor him and his chances for
asylum were slim because of his previous stay in the country.
Decision Under Review
[9]
The Board characterized the
applicant as a member of a particular social group (his family) who were perceived
as having a political opinion which is contrary to the interests of the FARC
because of his father’s involvement, and his own work, with the Liberal Party. This
culminated in an encounter the applicant claimed he had with two members of the
FARC in June 2008, who told him to stop his political activities.
[10]
The Board
found that the determinative issue was the applicant’s credibility. The
credibility finding was the product of inconsistencies, a lack of evidence and
negative inferences.
[11]
The Board
found that the applicant did not demonstrate a subjective fear. The crux of Board’s
decision in this regard was based on the fact that the applicant spent three
years, from February 2002 to August 2005, in the U.S. without applying for asylum. Moreover, the
applicant’s mother, when faced with threats from the ELN, remained in Columbia
and did not encourage her son to apply for asylum in the U.S. The applicant’s mother
also did not report this incident to the authorities. As such, the Board found
that the actions taken by the applicant, his mother, and his guardians in the U.S. during his stay there
from February 2002 to August 2005 did not show that either he or his mother had
a credible fear of the ELN.
[12]
The Board
accepted that the applicant worked for the Liberal Party, but was concerned
that he had not provided adequate evidence about his work, and therefore found
that his political involvement was not credible.
[13]
The Board
also drew a negative inference from the fact that the applicant’s father did
not send a letter detailing his son’s political activities, especially
considering that the applicant’s father is a lawyer who is heavily involved
with the Liberal Party. The applicant told the Board that his father had sent
a letter and that he had received it shortly before the hearing and didn’t have
time to get it translated.
[14]
The Board
also considered the fact that there was no evidence of complaints made to the
police or any authorities, and drew a negative inference from the applicant’s
failure to solicit state protection. Indeed, the Board found that it did not
appear that the applicant took the threats seriously.
[15]
The Board
concluded that the applicant’s lack of credibility and lack of subjective fear
meant that the applicant did not satisfy the requirements for refugee
protection. The claim was rejected.
Analysis
[16]
The
determinative issue in this case is credibility. The Board’s finding on
credibility is well within the Board’s expertise, and, as such, should be
reviewed using the reasonableness standard of review: Plaisimond v Canada (Citizenship
and Immigration), 2010 FC 998 at para 30; see also Triana Aguirre v Canada (Citizenship
and Immigration), 2008 FC 571 at para 14.
[17]
Although
rendered prior to the decision of the Supreme Court of Canada (SCC) in Dunsmuir
v New Brunswick [2008] 1 S.C.R. 190, 2008 SCC 9, Justice Rouleau’s observations
in Ahmad v Canada (Minister of Citizenship and Immigration), 2004 FC 808
at para 23, remain relevant:
It
has been consistently held by our courts that the Board has well established
expertise when it comes to determining questions of fact and in particular
assessing the credibility of asylum seekers. In fact, the assessment of the
facts constitutes the cornerstone of the Board's jurisdiction. As the trier of
facts, the Board is the body that is in the best position to draw reasonable
findings as to the credibility of the claimant's story, basing itself on
improbability, common sense and reason.
[18]
A
departure point for a credibility analysis is the understanding that the Board
must accept sworn testimony as truthful, unless there is good reason to doubt
its veracity: Maldonado v Canada (Min of Employment and Immigration) [1980] 2 FC 302, [1979]
FCJ No 248. However, this presumption is always rebuttable, particularly by
the failure of the documentary evidence to mention what one would normally
expect it to mention: Adu v Canada (Minister of
Employment and Immigration), [1995] FCJ No 114 at para 2 (FCA). Finally, when the Board
makes a negative credibility finding, it must explain these findings in “clear
and unmistakable terms”: Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228
(FCA); Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732
(FCA). This deference, however, does not extend to circumstances where the
Board has overlooked a key factual element of the claim, or conflated otherwise
separate events or discreet elements of the evidence into a single conclusion,
as occurred here.
[19]
The
Board erred in its assessment that the applicant lacked subjective fear because
he failed to claim asylum in the U.S. The Board based this
finding on the fact that the applicant fled to the U.S. and lived with
relatives from 2002 to 2005, when he was approximately 15 to 18 years of age,
and then he returned to Columbia. The reason that that
applicant fled to the U.S. was because his mother had been threatened
by the ELN, which had specifically made threats regarding her son.
[20]
The
applicant’s flight to the U.S. because of his fear of the ELN is not the
same as the fear of FARC that forms the basis of the applicant’s current
application for refugee protection. The fear of FARC was a new fear that was
formed upon his return to Columbia in 2008, as a result of
his political involvement. On the evidence before the Board, the origins and
nature of the risk to the applicant were substantively different. The
applicant did not fear the FARC when he went to the United States. The
applicant did not intend to claim status when in the U.S. This was
the evidence before the Board. The Board erred in equating the two fears as
being the same and stating that the applicant should have sought asylum at the
time of first stay in the U.S.
[21]
This
error is illuminated by the fact that the Board did not discuss the fact that
the applicant spent time in the U.S. when he fled Columbia a second
time in 2008. The applicant, in his affidavit, stated that he went to the U.S.
upon leaving Columbia in September
2008 and stayed until November 2009. However, the applicant explained that he
did not seek asylum because he had received advice that he was too old to be
sponsored by his mother (now an American resident) and would not be successful
in seeking asylum. The Board did not consider this information, which was
pertinent and, based on the Board’s discussion of this issue at paragraph 20 of
the decision, it is not clear whether the Board fully understood that the
applicant went to the U.S. in 2008.
[22]
While
it is true that the evidence must be assessed as a whole and all evidence must
be assessed in light of other evidence, this does not equate to licence to
merge, or otherwise conflate discreet events, substantively different in
nature, into a single determination. Moreover, as a result of the failure to
advance a claim, the Board drew negative inferences about the applicant’s
credibility. The Board considered this finding to be material and significant
to its determination of the applicant’s subjective fear of the FARC. It
referenced the failure to claim in the U.S. on two
occasions. This finding is, in light of the error noted, unsupportable.
[23]
The
application for judicial review is granted and the matter remitted to a
differently constituted panel of the Board.
[24]
There
is no question to be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted and
the matter remitted to a differently constituted panel of the Board. No
question for certification has been proposed and none arises.
"Donald
J. Rennie"
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