Docket:
IMM-6140-14
Citation:
2015 FC 190
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 16, 2015
Present: The Honourable Mr. Justice Luc Martineau
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BETWEEN:
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MIRYAM SOFIA BLANCO ORTEGA
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LINA SOFIA BLANCO COLMENARES
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CIRO ALFONSO COLMENARES GALVIS
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review from
a decision dated July 18, 2014, in which the Refuge Protection Division of
the Immigration and Refugee Board of Canada [Panel] rejected the applicants’
refugee claim on the ground that they are neither Convention refugees nor
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act].
[2]
The applicants are citizens of Colombia who
allege a fear of the Revolutionary Armed Forces of Colombia [FARC], which is
seeking the principal female applicant’s and the principal male applicant’s son
who is not a claimant on the present refugee protection claim. According to the
applicants, the son had problems with the FARC because he had been
investigating the death of his grandfather, the male applicant’s father, and
then left the country. Subsequently, the applicants started being intimidated
and threatened so that they would reveal their son’s location; these threats
were made on several occasions between October 2011 and June 2013. The
principal female applicant filed complaints and reports with the Office of the
Attorney General, the United Nations Office of the High Commissioner for Human
Rights and Colombia’s Human Rights Office. Following an incident where two
shots were fired into a window of their home, the applicants left Colombia for
the United States on June 26, 2013. They arrived in Canada on July 3,
2013, and claimed refugee protection on the same day.
[3]
The Panel denied the applicants’ claim on the
ground that they lacked credibility because of contradictions, omissions,
implausibilities and problems related to the many documents filed. The Panel
noted a contradiction between the refugee protection claim, which indicated
that the applicants had received several pamphlets from the FARC, and the
testimony of the principal female applicant, Ms. Blanco Ortega, in which
she stated that she had received only one pamphlet and that her son, too, had
received one. The Panel also found contradictions between the complaint made to
the Office of the Attorney General on November 1, 2011, and the principal
female applicant’s testimony, in which she indicated that she had not
experienced any problems between her son’s leaving and October 31, 2011 (Exhibit C-17).
The Panel further noted a contradiction between the principal female
applicant’s testimony and the document given to Colombia’s Human Rights Office,
which indicated that she had gone to the United Nations Office of the High
Commissioner for Human Rights after seeking police protection rather than
beforehand (Exhibit C‑23). Counsel for the applicants stated that this
was a translation error and submitted another translation after the hearing
that supported the principal female applicant’s testimony. The Panel then
obtained two further translations from independent translators who confirmed
the initial translation. The Panel gave counsel for the applicants an
opportunity to make comments on these translations, but did not receive any
from her.
[4]
The Panel also noted that the applicants had
failed to mention in the refugee protection claim form that they received
threatening telephone calls after the death of the male applicant’s father. It
further identified several implausibilities including that the male applicant
did not know the results of the investigation into his father’s death and that
the FARC, a group that has claimed many murders and whose human rights
violations are known worldwide, was concerned about their image being tarnished
solely because of the murder of the male applicant’s father. According to the
Panel, the applicants’ conduct was also not consistent with their alleged fear:
for example, the applicants had not changed their lifestyle to protect
themselves, and the principal female applicant took five days from receiving a
document allowing her to obtain police protection to actually requesting this
protection at the local police station. Lastly, the Panel found some of the
documents to be problematic. This included a letter from the Attorney General,
which contained a great many mistakes (Exhibit C-19), and letters from a
senator stating that the reason for the applicants’ persecution was rather
their involvement in the Conservative party’s social activities (Exhibit C-5).
The Panel therefore concluded that the applicants were not credible and
rejected their refugee protection claim.
[5]
The reasons for the Panel’s rejection
essentially concern the assessment of the applicants’ credibility, meaning that
the applicable standard of review is that of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9). The Panel’s conclusions with respect to the applicants’ credibility
attract considerable deference from this Court, and applicants bear a heavy
burden when they seek to have a Panel decision made on the basis of a non-credibility
finding set aside (Aguebor v Canada (Minister of Employment and Immigration),
160 NR 315, [1993] FCJ No 732 (FCA) at para 4; Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40 at paras 35-38; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 61 and 64;
Canada (Attorney General) v Almon Equipment Limited, 2010 FCA 193 at
para 62; Obeid v. Canada (Citizenship and Immigration), 2008 FC 503
at paras 9-11; Nijjer v Canada (Citizenship and Immigration), 2009 FC
1259 at para 14).
[6]
Even though counsel for the applicants spoke
with force and conviction, it is my humble opinion that there is no reason to
intervene here. I will not reproduce each and every argument made by counsel
for the parties. Here is a succinct summary.
[7]
The applicants allege that the Panel made many
errors in assessing the applicants’ credibility. The Panel omitted an essential
element in its summary of the facts, namely, that the applicants’ son was found
to be a refugee. Moreover, it was unreasonable for the Panel to draw a negative
inference from the contradiction between the refugee protection claim form and
the female applicant’s testimony with respect to the number of pamphlets
received since the principal female applicant had given a reasonable explanation
and the form had been completed by a translator. In addition, exaggerating
facts as in Exhibit C-17 is normal in Colombian culture. The Panel was
also overzealous in having two additional translations done of Exhibit C-23,
and the applicants had already said everything there was to say on this topic by
providing a contextual translation. The Panel afforded unreasonable weight to
the omission of threats in the refugee protection claim form. It also acted
unreasonably by finding that the testimonies on the ground of persecution were
implausible. In addition, it made an unreasonable assessment of exhibits C-19
and C-5. Lastly, the applicants allege that the delay between the
August 30, 2013, hearing and the July 18, 2014, decision caused them harm.
[8]
In reply, the respondent stated that the
applicants did not meet the heavy burden imposed on them to reverse the
non-credibility finding. According to the respondent, there were many defects
in the evidence, including hesitant, improvised testimony with unusually long
silences, serious contradictions, a major omission and many implausibilities,
as well as many irregularities in the documents. Moreover, it was reasonable
for the Panel not to accept the applicants’ explanations, and the Court should
not interfere (Mxumalo v Canada (Minister of Citizenship and Immigration),
2003 FCT 413 at para 7). Even if an error had been committed by the Panel,
this error would not have been fatal since there were many defects in the claim
(Zavadskaia v Canada (Minister of Citizenship and Immigration), 2006 FC
235 at paras 14-15). Lastly, the applicants do not explain how the delay
in the decision caused them irreparable harm, and the Panel explained why there
was a delay, namely, the need to obtain independent translations of Exhibit C-23
and to subsequently ask the applicants to comment.
[9]
I agree with the respondent. The applicants are
in fact asking the Court to reassess all of the evidence on file to reach
different conclusions from the Panel. The Court is not sitting on appeal but in
judicial review. The applicants did not establish that the Panel drew
unreasonable conclusions from the evidence. For each element, be it
contradictions, implausibilities or omissions, the Panel clearly explains why
it does not accept the applicants’ explanations. Moreover, contrary to the
applicants’ arguments, obtaining additional, independent translations of Exhibit C-23
was not overzealousness on the part of the Panel but a logical solution to the
fact that two contradictory translations were presented to the Panel. In
addition, the Panel gave the applicants an opportunity to comment on these two
translations, which they failed to do. The Panel’s decision relies on the
evidence, and there is no glaring inconsistency between the Board’s decision
and the weight of the evidence in the record (Rahal v Canada (Citizenship
and Immigration), 2012 FC 319 at para 60). Moreover, I find that the
delay between the hearing and the decision was reasonable in the circumstances
surrounding Exhibit C‑23, and applicants have not established having
suffered harm as a result of the delay.
[10]
Even if another decision-maker could have
reached a different conclusion, this is not sufficient reason to intervene. The
Panel’s decision must be read as a whole. The examples provided at the hearing
by learned counsel for the applicants do not suggest that the outcome was
unreasonable. The application for judicial review will be dismissed. Counsel agree
that this case does not raise any questions of general importance.
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