Docket: IMM-6982-13
Citation:
2015 FC 251
Vancouver, British Columbia, February 27, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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EDWIN ALEJANDRO PEREZ MENDOZA
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VALENTINA ARENAS IBANEZ
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LAURA CAMILA HOSTOS ARENAS
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SARA ALEJANDRA PEREZ ARENAS
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MARIA FERNANDA PEREZ ARENAS
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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 application to review and set aside the
decision of the Refugee Protection Division [RPD] rejecting the applicants’
claims for protection must be allowed for the following reasons.
Background
[2]
The applicants are a family from Colombia: Edwin Alejandro Perez Mendoza [Edwin], his spouse, Valentina Arenas Ibanez, and
their three children.
[3]
In January 1994, Edwin’s family farm in Fusa, Colombia, was overrun by the Revolutionary Armed Forces of Colombia - People's Army
[FARC], a paramilitary organization. The FARC demanded that Edwin’s father pay
them 40 million pesos or they would kidnap one of his sons. The family was
warned not to go to the authorities and the father paid the sum demanded.
[4]
The FARC demanded an additional 50 million pesos
from Edwin’s father in 2001 and threatened to kidnap Edwin’s nephew if it was
not paid. Edwin’s father contacted the authorities and a police investigation
was started, but the police were unable to protect the family. The family did
not have enough money to pay the demand, so they sold the farm and went into
hiding.
[5]
In August 2009, Edwin’s brother, Mauricio Perez
Mendoza [Mauricio], went to visit a farm owned by his wife’s family in Fusa.
He tried to conceal his identity and since that visit was without incident, he
continued to visit the farm periodically.
[6]
Starting on April 19, 2011, Mauricio received
several phone calls from the FARC demanding that he pay a “contribution” and providing specific details about
him, his wife, and his children. He was warned by the FARC not to go to the
police, but he was too afraid to do so anyway since the police had been unable
to protect his father in 2001, and there was much corruption in the police
force.
[7]
Mauricio later sought legal advice and filed a
police report on May 19, 2011. The complaint was assigned to an investigator
but Mauricio felt that his situation was not being taken seriously and the
calls from FARC continued. On the advice of his lawyer, he gave a report to
the Red Cross. Mauricio and his family fled to the United States and
eventually came to Canada. They were granted refugee protection by the RPD
after Edwin came to Canada and sought refugee protection but before his RPD
hearing.
[8]
On January 20, 2012, Edwin heard from his
sister-in-law’s brother, Jair Neira Mendez [Jair], that the FARC was looking
for Mauricio and since they couldn’t find him, they were now looking for
Edwin. Edwin was frightened, but he did not think the FARC had located his
residence in Bogota, so he went on a previously-planned business trip on
January 23, 2012. He returned home earlier than planned on January 27,
2012. His wife and children made few trips outside the home while he was away.
[9]
Upon his return, Edwin confirmed with Jair that
the FARC had been asking about him and Mauricio because Mauricio had been
extorted and had failed to pay. Edwin was afraid that if he told the FARC that
Mauricio was no longer in Colombia or if he did not cooperate, they would make
him pay the money or possibly harm him and his family as retribution.
[10]
On the advice of his father and Mauricio, Edwin
saw the same lawyer Mauricio had seen and filed a denunciation on February 20,
2012. He was told to come back in eight days.
[11]
On February 25, 2012, Edwin received a phone
call from the FARC asking for information about Mauricio and a “contribution” of 20 million pesos. Edwin and his
family became afraid and his children stopped attending school. Edwin had gone
to the authorities twice to inquire about the status of his denunciation.
[12]
Edwin received more calls in which the FARC
threatened to kill him or take one of his daughters if he did not comply and
then, on February 28, 2012, after receiving another threatening phone call he
moved his family in with his mother-in-law.
[13]
On February 29, 2012, the authorities confirmed
that the case was being transferred to the National Unit for Crimes Against
Kidnapping and Extortion for investigation. Edwin was told to wait for an
investigator to call to take his statement. He did not receive any call before
leaving the country. On March 1, 2012, Edwin received another phone call from
the FARC warning him that he was running out of time. Edwin came to believe on
March 7, 2012 that the FARC was looking for him at their apartment. He decided
that his family and he would leave Colombia. On March 15, 2012, he went to the
Red Cross, as had his brother, to report his problems and seek its help with
the police investigation.
[14]
Edwin and his family fled Colombia on March 19, 2012, and traveled to the United States. They entered Canada on March 28, 2012 and applied for refugee protection.
[15]
On April 3, 2012, an investigator called Edwin’s
mother-in-law to take Edwin’s statement. The investigation may have been
closed because he and his family were in Canada.
[16]
The RPD found that the applicants are not
Convention refugees because their fear is not related to a Convention ground.
Their evidence is that they were targeted for extortion by the FARC because
their other family members had not complied. It was concluded that, while the
FARC does have some political objectives, the applicants were not targeted for
political reasons.
[17]
The RPD stated at para 5 of its reasons: “the determinative issue in this case is state protection”
and it found that the applicants had failed to rebut the presumption of state
protection.
Issues
[18]
The applicants have raised the following issues:
1.
Was the state protection finding based on
irrelevant considerations?
2.
Was the state protection finding unfair and made
without regard to the evidence?
3.
Does the finding concerning the applicants’
efforts to seek state protection warrant setting aside the entire decision?
4.
Did the RPD err in finding that state protection
would be reasonably forthcoming to the applicants?
[19]
In the court’s view, the real issues are the
following:
1.
Are the RPD’s numerous statements concerning
Edwin’s credibility, which formed no basis for the decision, a sufficient
reason to set aside the decision?
2.
Is the RPD’s failure to mention, analyze, or
distinguish Mauricio’s successful RPD decision a sufficient reason to set aside
the decision?
3.
Is the RPD’s conclusion that the applicants
sought state protection only to bolster their refugee claim, a sufficient
reason to set aside the decision?
Analysis
A. Credibility
Findings
[20]
The Board made a number of credibility findings
against Edwin, including the following:
▪ Edwin waited for one month after learning about the FARC threats
before reporting the matter to the police;
▪ Edwin’s explanation for the delay was that he was not afraid of the
FARC until they contacted him directly on February 25, 2012; however, this was
inconsistent with him seeking protection on February 20, 2012;
▪ It was implausible that Edwin would go to his lawyer before
contacting the police given his evidence that as a security officer, he would
always contact the police as soon as possible after an incident occurred;
▪ His denunciation (February 20, 2012) stated that he had to travel
overseas to protect his family, which is inconsistent with his evidence that he
was not afraid of the FARC until February 25, 2012, and that he did not decide
to leave Colombia until March 14, 2012;
▪ His denunciation stated that someone was watching and following him
and his family, which is not mentioned in his PIF narrative and is inconsistent
with his evidence that he was not afraid until February 25, 2012;
▪ Edwin stated that he did not follow up with the authorities after
February 29, 2012, which is inconsistent with his evidence that he continued to
conduct his business and got to a public market until they left Colombia;
▪ His statement that he continued to work until their departure is
inconsistent with the PIF which notes that he stopped working in January 2012;
▪ It is implausible that after February 29, 2012, he would be too
afraid to leave the house to follow up with the authorities, but not too afraid
to continue conducting his business;
▪ It was implausible that he would not follow up on Mauricio’s
investigation before deciding to leave the country;
▪ His evidence was inconsistent about why he went to the Red Cross
despite knowing that they had no power over the authorities; and
▪ Given that Mauricio had not been helped by the Red Cross, there
would be no reason for Edwin to go to the Red Cross, especially since he had
already decided to leave Colombia.
[21]
Despite these credibility findings by the RPD,
as the applicants note, the RPD made no clear finding that Edwin was not
credible regarding the FARC threats, the police reports and conduct, or the
report to the Red Cross. In fact, the RPD appears to have accepted all of the
factual testimony offered by Edwin in support of the applicants’ claims. There
is no part of their story that the RPD does not accept, and there is certainly
no part that it states it does not accept because of its credibility concerns.
[22]
Negative credibility findings must be made in
clear and unmistakable terms (Hilo v Canada (Minister of Citizenship and
Immigration) (1991), 130 NR 236, 26 ACWS (3d) 104 (FCA)), and it is an
error not to specify what evidence the decision-maker does and does not find
credible (Rahman v Canada (Minister of Employment and Immigration)
(1989), 8 Imm LR (2d) 170, 16 ACWS (3d) 105) (FCA)). Here, there are numerous
statements by the RPD that it finds Edwin not to be credible, but there is no
specific reference to any particular evidence that it rejects on the basis of
that credibility finding. Regrettably, this leaves an impression with the
applicants and this court that the credibility findings impacted the RPD’s
assessment of the evidence that led to its state protection finding.
[23]
I do not accept the submission of the respondent
that the state protection finding would necessarily have been the same had the
RPD made no reference to its concerns regarding Edwin’s credibility. There is
quite simply no way to know. This alone is sufficient reason to find that the
decision does not meet the requirement of “justification,
transparency and intelligibility” set out by the Supreme Court of Canada
in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
B. Mauricio’s Successful Refugee
Decision
[24]
Although there are some differences, Mauricio’s
refugee protection claim was based on the same agents of persecution, the same
conduct in seeking state protection, and largely on the same facts, as Edwin’s
claim. Moreover, since it was accepted, the RPD must have found that state
protection was not available to Mauricio in Colombia. As the applicants
submit, at the very least, Mauricio was a similarly situated individual.
However, there is no mention at all in the decision under review of the
successful RPD decision regarding Mauricio’s claim.
[25]
This court has held that it is incumbent on the
RPD Member when reaching a different result than was previously reached by
another Member regarding a claim by a family member under similar
circumstances, to explain why a contrary result was reached: Mengesha v
Canada (Minister of Citizenship and Immigration), 2009 FC 431 at para 5,
184 ACWS (3d) 193, and Siddiqui v Canada (Minister of Citizenship and
Immigration), 2007 FC 6 at paras 18 – 20, 154 ACWS (3d) 673 [Siddiqui]).
[26]
I concur entirely with the following observation
of Justice Phelan in Siddiqui: “The failure to
explain the basis for the different conclusion undermines the integrity of
Board decisions and gives them an aura of arbitrariness which is no doubt not
intended nor is it acceptable.” In this case the RPD discussed its
credibility concerns at length when they were not relevant to its decision, so
the aura of arbitrariness or improper influence in the decision is heightened.
[27]
This error too, is a sufficient basis to set the
decision aside.
C. Motivation in Seeking State
Protection
[28]
The RPD found that Edwin reported the FARC
threats only as a means of bolstering his refugee claim:
Further, the claimant said that he filed the
denunciation in order to have a record of what happened to him in Colombia. He didn’t believe that the Colombian authorities would be able to do anything
for him. Given the credibility concerns noted above and the claimant’s own
admission that he didn’t think the denunciation would help, the panel finds
that the claimant filed the denunciation to have a record in order to bolster
his refugee claim in Canada, not because he was seeking protection in Colombia.
A claimant must seek protection at home before seeking international protection
or provide a reasonable explanation as to why he did not seek protection at
home. [emphasis added]
[29]
It is submitted that the RPD erred in basing its
state protection findings on the applicants’ motivation for seeking
protection. They say that it is irrelevant whether they sought protection for
the purpose of proving that the protection would be ineffective or because they
believed that protection would be forthcoming. They further submit that
requiring refugee claimants to demonstrate that they sought protection because
they genuinely believed that it would be forthcoming is inconsistent with Attorney
General v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1. It is also said that
opportunistic behaviour is irrelevant because the focus of the RPD inquiry is
whether a refugee claimant is at risk if returned to their home, and they offer
the example of sur place refugee claims where the motivation in creating
the sur place claim scenario is irrelevant: Ghasemain v Canada
(Minister of Citizenship and Immigration), 2003 FC 1266 at para 31, 242
FTR164.
[30]
The respondent submits that motivation is
relevant to the RPD’s assessment because the fact that Edwin filed the
denunciation after deciding to leave Colombia and without giving authorities
time to respond does not show a reasonable attempt to seek state protection.
[31]
The RPD’s finding that the seeking of state protection
was compromised because of the motivation ascribed to it by the RPD itself
appears unique. Generally, the RPD finds that the presumption of state
protection was not rebutted because the claimant had not sought it. Here, the
RPD appears to be saying, in part, that it is not rebutted because Edwin did
seek it – but for improper reasons. I need not decide whether motivation is
never a relevant consideration when a claimant has sought state
protection, because in this case there was simply no basis for the RPD’s
speculation as to Edwin’s motivation. It never put that concern to him. I
agree with the applicants that fairness dictates that if the RPD is going
to impugn a claimant’s reasons for seeking protection and use that against
him, then it owes the claimant a duty to put that supposition squarely to the
claimant in a clear and direct question. In my view, it is a breach of procedural
fairness and natural justice to do otherwise, as the RPD did in this case.
[32]
This error too, is a sufficient basis to set the
decision aside.
[33]
For these three reasons, separately and
cumulatively, this decision must be set aside and the applicants’ claims for
protection redetermined. Neither party proposed a question for certification.
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