Date:
20130426
Docket:
IMM-6187-12
Citation:
2013 FC 436
Ottawa, Ontario,
April 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
ANA MARIA NAVARRETE
ANDRADE
CESAR ERLEY HOYOS
GAITAN
SAMUEL HOYOS
NAVARRETE
ISABELLA HOYOS
NAVARRETE
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicants seek to set aside a decision by the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the Board) that the
applicants are not Convention refugees or persons in need of protection. The
Board’s findings in respect of both credibility and state protection cannot be
sustained and the application is therefore granted.
The Allegations
[2]
Mr.
Hoyos Gaitan and his family are citizens of Colombia where he worked as the
national marketing director for a vinyl manufacturing company.
[3]
He
claims that on June 2, 2011, the Colombian Revolutionary Armed Forces (FARC)
telephoned him on his company phone and demanded a “war tax” contribution of
100 million pesos (about $54,000 US). On June 7, 2011, the FARC called again
demanding that he pay and warning that he should not call the police because
they knew where his wife, Ms. Navarrete Andrade, and
children were. Terrified, the couple did not call the police. On June 11,
2011, the FARC called for the third time. He was told to have half of the
money ready for the next week.
[4]
The
couple called Ms. Navarrete Andrade’s sister in Canada, who had previously been accepted as a refugee. She recommended that they flee.
However, the applicants did not want to leave Colombia because they had stable
jobs and their children were very young. Instead, they used alternate routes
to get to their office and Mr. Hoyos Gaitan decided to sell their car to raise
money.
[5]
On
June 20, 2011, Mr. Hoyos Gaitan travelled to a promotional event in the city of
Yopal, in a FARC-infested region. That night the FARC telephoned him at the
hotel and told him to meet the next day. He complied and was met by four armed
men who drove him to a second location. There, he pleaded that he did not have
much money. They did not accept this and gave him until July 1, 2011 to bring
30 million pesos (about $16,000 US) to the hotel in Yopal.
[6]
Upon
returning home, he and his wife decided to flee. On June 26, 2011, they went
to Ms. Navarrete Andrade’s brother’s house to hide. On July 6, 2011,
the family flew to New York, and then travelled to Buffalo. They made an appointment
to be processed as refugee claimants at the Fort Erie border crossing.
[7]
Ms.
Navarrete Andrade’s
father received two phone calls from individuals looking for the applicants.
The first was on July 5, 2011 and was from an unidentified caller. The second
was on July 8, 2011 from a person identifying himself as a FARC member.
[8]
The
applicants say that they fear returning to Colombia because they have been
declared military targets by the FARC for their failure to collaborate, and the
authorities are unable to protect individuals in their circumstances.
Decision Under Review
[9]
The
Board found that the applicants were neither Convention refugees nor persons in
need of protection based on both a negative credibility finding and the
availability of state protection.
[10]
With
regards to credibility, the Board found that the applicant’s claims were
implausible, for the following reasons:
a.
The
Board did not accept that Mr. Hoyos Gaitan would have met with the FARC in
Yopal, knowing the risk that they would kidnap him and demand a ransom from his
family. Mr. Hoyos Gaitan had testified that he had experience negotiating as
part of his job and had faith that he could reason with them as to the amount
of money they were demanding. The Board did not accept this explanation.
b.
The
Board found it implausible that the FARC would not have detained Mr. Hoyos Gaitan
and demanded a ransom.
c.
The
applicants did not belong to any of the groups considered by the United Nations
High Commissioner for Refugees (UNHCR) to be at particular risk.
d.
The
applicants did not make a police report.
e.
The
Board considered it unbelievable that the applicants fled the country so
quickly as a result of the alleged threats.
[11]
Next,
the Board found that the applicants had not rebutted the presumption of state
protection. It reviewed the standard for state protection and discussed the
current status of the FARC. In the circumstances, the Board considered it
unreasonable that the applicants did not approach the police.
Issue
[12]
The
issue for this judicial review is whether the Board reasonably found that the
applicants lacked credibility and had failed to rebut the presumption of state
protection: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para
47.
Discussion
Credibility
[13]
It
is open to the Board to make adverse credibility findings based on the
implausibility of an applicant's story, in light of
the evidence in the record and the Board’s understanding of human behaviour: Gonzalez
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 805, para
27.
[14]
However, such findings should be made only in clear cases, when
the allegations are outside the realm of what could reasonably be expected, or
where the documentary evidence demonstrates that the story could not have
happened as alleged: Valtchev v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 1131, para 7.
[15]
The
Board found it implausible that Mr. Hoyos Gaitan would voluntarily meet with
the FARC and did not accept his explanation that he was a skilled negotiator due
to his job. The Board did not reference the rest of Mr. Hoyos Gaitan's explanation, which was that if he did not meet
with the FARC they could have found him and killed him on his way back to Bogota, as he would be traveling past the meeting place.
[16]
In
my view, this implausibility finding was made without regard to the evidence,
specifically Mr. Hoyos Gaitan's explanation
that if he did not accept the FARC’s demand for a meeting, they could have
found him. Additionally, the Board did not consider that, while Mr. Hoyos Gaitan's behaviour may seem reckless from a Canadian perspective,
it may not be so unusual in Columbia. The Board must have regard to the local
context in assessing the plausibility of testimony.
[17]
The
Board also speculated, without referencing any documentary evidence, that the
FARC would have detained Mr. Hoyos Gaitan to demand a ransom, if the meeting
had taken place. The Board may not, in the absence of evidence, make
assumptions about how the FARC would respond.
[18]
It
is also difficult to understand why the Board found it implausible that the
applicants would leave Columbia so quickly after being threatened. Often,
delay in leaving the country is taken to indicate lack of a subjective fear.
Here, the applicants' prompt action has counted
against them, a classic “catch-22”. A negative inference is drawn if the
applicants wait after being threatened, and also if they leave too soon. It raises
the question as what is the “right” time to leave. There is, of course, no
answer to this question, as each case must be assessed on its own merits and
decisions to flee assessed in the context of the surrounding circumstances.
[19]
The Board also considered the applicants' story implausible
because they do not belong to groups listed by the UNHCR as being at
particular risk, such as judges, activists and government authorities.
However, the Board ignored evidence that professionals may also be at
heightened risk. As a director of a manufacturing company, with a substantial
salary, Mr. Hoyos Gaitan fits within this category.
[20]
I
have concluded that the Board's negative
credibility finding was unreasonable.
State Protection
[21]
The
Board’s decision could still be upheld if its state protection finding is
reasonable.
[22]
Refugee
claimants must overcome the presumption that their country of citizenship is
able to offer them protection: Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689. Generally speaking, refugee claimants must first seek
protection from their home country, unless they provide clear and convincing
evidence that state protection would not reasonably have been forthcoming.
[23]
This
presumption is particularly strong in the case of democracies. That said,
there is a wide spectrum of democratic nations, and so the Board must look
further than the mere existence of elections, which are less important for the
issue of state protection, but focus on the strength of the institutions
relevant to state protection, such as the professionalism of the police force
and the independence of the judiciary and defence bar: Sow v Canada (Minister of Citizenship and Immigration), 2011
FC 646.
[24]
As
the applicants did not seek state protection in Columbia, the question is
whether state protection might reasonably be forthcoming, having regard to the
applicant’s particular circumstances.
[25]
The
Board noted that civilian authorities generally have control over the security
forces in Columbia, but acknowledged that criminality, corruption and human
rights abuses are still problems. The Board stated that the government had
made efforts to address these problems and noted various institutions in place
to combat kidnapping and extortion. However, the Board does not comment on how
effective these efforts have been. The Board simply stated its conclusion that
“there is adequate state protection in Colombia for victims of crime” without
referencing any basis for this in the evidence.
[26]
The
Board conducted a lengthy review of the documentary evidence regarding Columbia, but this review had little relevance to the issue of state protection. For
example, the Board mentions that the Columbian government has strengthened its
relationship with the human rights community and that extrajudicial executions
had declined. While positive, these developments do not indicate the adequacy
of state protection from the FARC.
[27]
The
Board also noted that some FARC members have been demobilized and that some
hostages have been freed. The Board quoted a statistic from 2009 that murders
committed by illegal groups had decreased by 2.2% and that the number of
kidnappings for extortion has also been reduced by 23%. Not only is this
information somewhat dated, it shows that murder, kidnapping and extortion
remain serious problems.
[28]
The
Board must actually analyse the evidence it references and consider how that
evidence relates to the issue of state protection. It is insufficient to
merely summarize large volumes of evidence and then state a conclusion that
state protection is adequate. The evidence and the conclusion must be
connected with a line of reasoning that is transparent and intelligible.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
Email this Content