Date: 20081201
Docket: IMM-2458-08
Citation: 2008 FC 1329
Ottawa, Ontario, December 1, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JEAN PIERRE HERNAN QUINTERO
GUZMAN,
NIDIA ALEXANDRA GUEVARA PALACIOS,
DYLAN QUINTERO GUEVARA
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, dated May 7, 2008, concluding
that the applicants are not Convention refugees or persons in need of
protection.
FACTS
[2]
The
applicants are citizens of Columbia. The claim of their
minor son, Dylan Quintero Guevara, a citizen of the United States of
America,
is not at issue in this application.
[3]
The
adult applicants each have separate claims to protection on the basis of
different personal narratives. Additionally, each applicant claims protection
by reason of the spousal relationship to the other.
Jean Pierre Hernan
Quintero Guzman
[4]
Jean
Pierre Hernan Quintero Guzman (“the male applicant”) worked as the
administrator of his grandfather’s farm near the town El Guamo in the Bolivar
Department in northern Columbia.
[5]
The
applicant states that in 1999 a unit of the Revolutionary Armed Forces of
Columbia (FARC) moved into the area and demanded that the farmers in the area
pay a vacuna (extortion money) in the monthly sum of 90,000 pesos or
$450 USD. They were given a deadline of December 31, 1999 to pay the money.
The applicant and his grandfather refused to pay the sum and on January 2,
2000, the applicant joined his parents in Bogota, to avoid reprisals
from FARC. His grandfather moved away from his farm to the nearby town of El Guamo.
[6]
On
March 4, 2000, the male applicant accompanied his father on a business trip to
the USA. The
applicant stated in the hearing that he had travelled with his father “with the
idea that I might remain in the United States.” However, he “felt
alone” and returned to Bogota after 12 days, feeling that as time passed
he would no longer be in danger from the FARC. In April 2000, he visited his
grandparents in El Guamo for three weeks. While there, he kept a low profile,
as his grandfather had been receiving threatening letters from the FARC, which
mentioned him as well. The applicant states that upon his return from the USA he became
aware that the “threats were still ongoing” and felt that he was still in
danger.
[7]
On
May 24, 2000, the male applicant again travelled to the USA, but
returned to Bogota on September 7, 2000, upon being told that Colombian asylum
claims in the United
States
were likely to be rejected. He states that while staying at his parents’ home,
he received phone threats. He went to the USA a third time
on January 7, 2001, and remained there until he lacked money. He returned to Bogota on May 20,
2001. He stayed with his parents, but afterward moved in with Nidia Alexandra
Guevara Palacios (the female applicant). He states that he received
threatening phone calls at the female applicant’s home. He left for the USA again on
September 3, 2001.
Nidia Alexandra Guevara
Palacios
[8]
The
female applicant worked as an administrative assistant to a well-known Caracol
TV reporter, Manuel Teodoro Bermudez, who produced and anchored an investigative
TV show on crime and corruption called Séptimo Día. The show was critical of
the government’s failure to protect citizens and exposed human rights abuses
committed by FARC, paramilitary groups, the Colombian government and drug
traffickers. The female applicant stated at the hearing that she was involved
in the production of the show. She stated that the TV station received several
bomb threats and threatening phone calls as a result of the TV program.
[9]
While
her boss was away, the female applicant received a phone call from the
Campesinos de Cordoboa y Uraba (ACCU), a paramilitary group. They threatened
her boss and also threatened the applicant for her involvement in the
production. She tried to seek assistance from the Department of Administrative
Security and the TV station but was told that there were no resources to
protect her.
[10]
On
August 3, 2001, the applicant was driving home from a class at the university
when she was accosted by three men driving an SUV, kidnapped at gunpoint,
driven to a secluded area and beaten and raped by the three men. During the
attack, she was told that she was being targeted for her involvement with the
TV show and to send a message to her boss and others who worked on the
program. She escaped, contacted the police and sought medical treatment for
her injuries.
[11]
After
the male applicant left Colombia on September 3, 2001,
the female applicant moved to her mother’s home. On October 4, 2001, she
joined the male applicant in the USA. The applicants were
married in the USA.
[12]
The
male applicant made a claim for asylum in the USA, which was
rejected. The Immigration Judge found the applicant’s story credible but
determined that he did not meet the definition of a Convention refugee because
there was no nexus to the Convention definition, i.e. the persecution he feared
was not on the basis of one of the grounds in the definition. The female
applicant made a claim for asylum in the USA after the
one-year deadline had passed, and thus her claim was never heard.
Decision under review
Jean Pierre Hernan
Quintero Guzman – The Male Applicant
[13]
The
Board found that the male applicant was not credible. The determinative issue,
according to the Board, was the lack of evidence of the male applicant’s
subjective fear of persecution. The Board found the fact that the male
applicant had repeatedly returned to Colombia, once even returning to
visit his grandfather in El Guamo, the town near his farm under control of the
FARC, evinced a lack of fear of the FARC. The Board also found that the male
applicant’s grandfather, the principal target of the FARC because of his
ownership of the farm, had remained in El Guamo for three years unharmed by the
FARC.
[14]
Moreover,
the Board found that despite the applicant’s claim that the FARC had given the
applicant and his grandfather a deadline of December 31, 1999 to pay them the vacuna,
the only retribution the applicant experienced was threatening phone calls
which began two months after the deadline. The Board concluded that the reason
for the applicant’s apparent lack of fear of FARC was that the narrative about
the FARC threatening his grandfather and himself was not true and had been
contrived for the purposes of furthering his refugee claim.
[15]
The
Board also found that the male applicant’s return trips to Colombia and the lack
of evidence undermined the existence of an objective risk. Thus, the Board
concluded that the applicant was neither a Convention refugee nor a person in
need of protection under section 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27.
Nidia Alexandra Guevara
Palacios – The Female Applicant
[16]
The
Board rejected the female applicant’s claim on the basis that country
conditions had changed and she no longer had an objective basis to fear
persecution. The panel found that most of the paramilitary units in Colombia had entered
into an accord with the government on July 15, 2003. The accord called for the
demobilization of paramilitary units by 2005. The Board found that violence
by paramilitary groups had been decreasing since 2002, many former paramilitary
leaders were in jail or under inspection, and as of 2006, 32,000 former
paramiltiaries (spelling?) had been demobilized and the United Self-Defence
Forces of Colombia, or Autodefensas Unidads de Colombia (the AUC) and
associated groups had ceased to function.
[17]
In
view of these changes and the fact that seven years had passed since the female
applicant left Colombia, the Board found that the group who had
victimized the claimant in all likelihood no longer existed.
[18]
The
Board concluded that there was no serious possibility that the claimant would
face persecution from the group whose members attacked her, nor would she face
a risk to her life, a danger of torture or a risk of cruel and unusual treatment
or punishment, should she return to Colombia.
[19]
The
Board further concluded that the “compelling reasons” exception in section
108(4) of IRPA was not applicable to the female applicant. The Board stated:
The central incident in the claimant’s
allegation being the single incident of sexual attack along with some
threatening phone calls, although abhorrent, in the panel’s view does not
achieve the high standard required to warrant applicant of the compelling
reasons exception in 108(4) of the IRPA
[20]
The
Board therefore rejected the claims of both applicants.
ISSUES
[21]
The
applicant raises the following issues in this application:
1. Did the Board
err in finding that the male applicant’s story was not credible and therefore
concluding he was not a Convention refugee or person in need of protection;
2. Did the Board
err in failing to undertake a separate analysis of the male applicant’s claim
pursuant to section 97 of IRPA;
3. Did the Board
err in finding that there had been a change of circumstances in Colombia and
therefore concluding that the female applicant was not a Convention refugee or
person in need of protection;
4. Did the Board
err in finding that the female applicant’s persecutory treatment by the
paramilitaries was not a compelling reason not to return her to Colombia; and
5. Did the Board
err in failing to undertake a separate section 97 analysis of the female
applicant’s claim?
STANDARD OF REVIEW
[22]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, 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.”
[23]
The
Board’s findings related to credibility and country conditions are findings of
fact, and are subject to a standard of reasonableness. Malveda v.
Canada (Minister of Citizenship and Immigration), 2008 FC 447, per Mr.
Justice Russell at paragraphs 18-20; Khokhar v. Canada (MCI), 2008 FC
449, 166 A.C.W.S. (3d) 1123, per Justice Russell at paragraph 22. The Board’s finding that
the female applicant’s experience did not rise to the level of “compelling
reasons” under section 108(4) is a finding of mixed law and fact, and is also
subject to a standard of review of reasonableness. Decka v. Canada (MCI) 2005
FC 522, 140 A.C.W.S. (3d) 354, per Justice Mosley at paragraph 5.
[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 at paragraph 47).
[25]
The
applicants also submit that the Board erred in law in failing to conduct a
separate section 97 analysis for each claimant. Errors in law are reviewed on
a standard of correctness.
ANALYSIS
Issue No. 1:
Did the Board err in finding the male applicant was not credible?
[26]
The
applicant argues that the Board’s credibility finding is based solely on the
fact that he returned to Colombia three times, and that “factors such as
re-availment, delay in claiming protection, and failure to claim protection in
other countries, may be taken into account when assessing credibility, but are
not, on their own, determinative” of a refugee claim. In support of this
argument, the applicant cites three cases in which courts have held that delay
alone is not a determinative factor in a refugee claim. (Huerta v. Canada
(MEI) (1993)157 N.R. 225 (F.C.A.); Hue v. Canada (MEI) [1988] F.C.J.
No. 283 (F.C.A.); Lameen v. Canada (Secretary of State) (1994) 48
A.C.W.S. (3d) 1424 (F.C.)).
[27]
However,
the Board in this case was not relying simply on the delay in claiming refugee
status, but rather the fact that the applicant’s return to Colombia generally,
and the FARC-controlled area where he had originally been threatened
specifically, evinced a lack of subjective fear. It was reasonably open to the
Board to conclude that the applicant’s behaviour was not consistent with the
events he had described, and that had these events occurred, the applicant
would not have returned to Colombia. If a person is fleeing
his homeland and seeking refuge from persecution, he would not return to his
homeland because he was lonely.
[28]
Second,
the applicant argues that the Board did not consider the applicant’s
explanations for returning to Colombia on each of the
occasions. The applicant stated that he returned on the first occasion because
he missed his family and thought he might no longer be at risk. He kept a low
profile when he visited El Guamo. He returned to Colombia a second
time because he had been advised his asylum claim in the USA would fail, and a
third time because he did not have sufficient money to stay in the U.S. The
applicant argues that the Board should have considered whether these
explanations were reasonable. However, the Board decision described the
applicant’s explanations in its decision, and stated that it found it
“difficult to believe the claimant feared the FARC by his actions of
returning”. It was open to the Board to conclude the explanations of the
applicant were inadequate and inconsistent with his narrative.
[29]
Third,
the male applicant argues that the reliance on the failure of the FARC to harm
his grandfather is misplaced as he, not his grandfather, was the primary target
because of his role as administrator and his refusal to pay. The applicant
stated in his PIF that when the FARC could not find him, they targeted his
grandfather, who fled to Venezuela in 2003.
[30]
In
making its negative credibility determination, the Board noted that the only
incidents that the applicant claimed had ever occurred were threatening phone
calls, that the first of these calls had taken place two months after the
alleged deadline to pay the vacuna, and that despite the fact that the
FARC could not find the applicant and had targeted his grandfather, his
grandfather had been able to remain in FARC-controlled territory for another
three years. The Board found that these facts undermined the applicant’s
narrative. It was reasonably open to the Board to take into account that the
applicant’s grandfather was never harmed, and to find the applicant’s story not
credible on the basis of this fact along with the lack of reprisals against the
applicant and the applicant’s three trips back to Colombia, including to
El Guamo.
Issue No. 2: Did the Board err in
failing to undertake a separate analysis of the male applicant's claim under
section 97?
[31]
The
applicant submits that the Board failed to conduct a separate analysis under
section 97 of IRPA. According to the applicant, the Board did not properly
consider whether an objective fear existed.
[32]
The
applicant argues that the Board simply relied on its negative credibility
finding to hold that the applicant did not face an objective risk of
persecution as a farm administrator.
[33]
In
considering the applicant’s section 97 claim, the Board stated:
Although lack of subjective fear may not
necessarily be determinative under section 97, the panel, in arriving at the
said conclusion, had considered whether the claimant is objectively at risk
accordingly. The claimant’s return trips to Colombia did not demonstrate the existence of an
objective risk.
[34]
The
applicant’s return trips to Colombia and the lack of any
incidents, other than the alleged threatening phone calls, was reasonably adequate
to demonstrate a lack of objective danger under section 97 in the applicant’s
particular circumstances.
Issue No. 3: Did the Board err in
finding that the female applicant was not a Convention refugee due to the
change in circumstances in Colombia?
[35]
The
applicant submits that the Board based its decision that the female applicant
was no longer at risk on a selective reading of the evidence. In particular,
the applicant points to documentary evidence that despite the demobilization of
the AUC members of paramilitary groups have continued to engage in human rights
abuses, including targeting journalists and witnesses.
[36]
The
2006 US Department of State Report on Human Rights Practices (“DOS Report”),
states (Applicant’s Record, p. 100):
Despite a unilateral cease-fire declared
by the AUC in 2002 and a nationwide demobilization, renege paramilitary members
committed the following criminal acts and human rights abuses: political
killings and kidnappings; forced disappearances; torture…suborning and
intimidation of judges, prosecutors and witnesses…killings of human rights workers,
journalists, teachers and trade unionists.
[37]
The
Reporters Without Borders 2007 Report on Colombia states
(Applicant’s Record, p. 125):
Three journalists were killed and seven
others forced to flee their region or even the country after being threatened.
The paramilitary forces, dismantled but not disarmed, continue to terrorise
people, especially in northern
provinces.
[38]
The
female applicant stated in her PIF that she was afraid she would be a targeted
as a witness. The Board did not address this allegation. Further, there was
evidence on the record that the female applicant’s association with the TV show
was well known because of a magazine article profiling her relationship with
her boss. The Board did not refer to any evidence of the continuing violence
by paramilitary forces or the particular continuing threats to journalists.
Despite noting that former members of paramilitary forces are now being tried
for their crimes, the Board also did not refer to evidence of the threats to
witnesses of crimes committed by the paramilitary forces.
[39]
The
Board therefore did not adequately consider the particular danger to the female
applicant as a former employee of a targeted TV program or as a witness to a
crime by members of a paramilitary group. This relevant evidence is
contradictory to the Board’s finding and should have been addressed by the
Board before finding that the applicant is not a refugee.
Issue No. 4: Did the Board err in
failing to conduct a separate analysis of the female applicant's claim under
section 97 of IRPA?
[40]
The
applicant states that the Board did not adequately consider under Section 97
the objective risks to journalists and witnesses. The Board did not mention
section 97 in addressing the female applicant’s claim. However, the Board makes
clear that it found that the applicant faced no serious possibility of risk as
contemplated under section 97. However, the Board must address the
contradictory relevant evidence referred to above.
Issue No. 4 5: Did the Board err
in finding that the female applicant's persecutory treatment was not a
compelling reason to allow her to remain in Canada?
[41]
The
Board stated that the “single incident” of sexual assault and the threatening
phone calls to the female applicant, although “abhorrent”, did not rise to the
level of extraordinary circumstances required by section 108(4) of IRPA.
[42]
Section
108(1)(e) of IRPA provides:
|
108.
(1) A claim for refugee
protection shall be rejected, and a person is not a Convention refugee or a
person in need of protection, in any of the following circumstances:
(e) the reasons for which the person sought
refugee protection have ceased to exist.
|
108. (1) Est rejetée la demande
d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger
dans tel des cas suivants :
e) les raisons qui lui ont fait demander l’asile
n’existent plus.
|
[43]
Section
108(4) provides:
|
(4) Paragraph (1)(e)
does not apply to a person who establishes that there are compelling reasons
arising out of previous persecution, torture, treatment or punishment for
refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
|
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a
des raisons impérieuses, tenant à des persécutions, à la torture ou à des
traitements ou peines antérieurs, de refuser de se réclamer de la protection
du pays qu’il a quitté ou hors duquel il est demeuré.
|
[44]
In
Adjibi v. Canada (MCI) 2002 FCT 525, Justice Dawson held:
30 The reasons of the CRDD
were simply that there was "insufficient evidence" that Mrs. Adjibi's
persecution "was sufficiently 'atrocious' and 'appalling' to warrant the
application of s.2(3)" of the Act.
31 Those
reasons were, in my view, insufficient for the following reasons.
32 First,
having found Mrs. Adjibi to have suffered persecution I do not understand what
the CRDD meant when it spoke of the "insufficient evidence".
33 Second,
and related to the first reason, persecution by definition requires
maltreatment which rises to the level of serious harm. Meaningful reasons
require that a claimant and a reviewing court receive a sufficiently
intelligible explanation as to why persecutory treatment does not constitute compelling
reasons. This requires thorough consideration of the level of atrocity of the
acts inflicted upon the applicant, the effect upon the applicant's physical and
mental state, and whether the experiences and their sequela constitute a
compelling reason not to return the applicant to his or her country of origin.
See: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 89 F.T.R. 106 (T.D.).
34 The
failure of the CRDD to provide meaningful reasons was a reviewable error.
Similarly, in this case, the Board does not
provide any explanation of why the “abhorrent” attack on the applicant was
insufficient to trigger the protection of section 108(4). The female applicant
provided the Board with letters from the doctor who treated her following her
assault, a psychologist in Colombia who counseled her, and a letter from a counselor at Women’s
Habitat in Canada. The Board did not
refer to this evidence or the continuing psychological harm suffered by the
applicant in deciding that the “single incident” did not warrant a finding that
there were compelling reasons not to return the female applicant to Colombia.
If the Board considers that a “gang rape” is not a “compelling reason” because
it was an isolated incident, then the Board must provide an intelligible
explanation. The Court cannot substitute its view for that of the Board and
cannot guess as to the Board’s reasons.
[45]
The
jurisprudence is that a “compelling reason not to return the applicant to his
or her country of origin” notwithstanding that the reasons for which the person
sought refugee protection have ceased to exist only arises in exceptional
cases. However, the jurisprudence requires that the Board provide adequate
reasons including consideration of the psychological evidence about the affect
from the “persecution, torture, treatment or punishment” as stated above, the
Board did not refer to this evidence.
CONCLUSION
[46]
I
find that the Board’s decision with respect to the male applicant was
reasonable. It was open to the Board, based on the male applicant’s return
trips to Colombia, and the
other circumstances of the male applicant’s case, to conclude that his story
was not credible. Further, the Board’s analysis under section 97 was
sufficient. However, the Board’s decision with respect to the female applicant
was unreasonable. The Board did not adequately consider the particular
circumstances of the female applicant and the relevant evidence regarding the
targeting of journalists and witnesses. The Board also did not provide
adequate explanation of its finding that the applicant’s circumstances did not
warrant protection under section 108(4) of IRPA.
[47]
For
this reason, this application for judicial review is allowed in part and denied
in part. The application for judicial review of the determination of the male
applicant’s claim is denied. The application for judicial review of the
determination of the female applicant’s claim is allowed, and will be referred
back to the Board for redetermination.
[48]
Neither party
considered that this case raised any serious question of general importance
that ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed in part with respect to the female
claimant, Nidia Alexandra Guevara Palacios, and her refugee claim is referred
back to a differently constituted panel of the Board for redetermination.
“Michael
A. Kelen”
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