Docket: IMM-3932-15
Citation:
2016 FC 659
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 14, 2016
In the presence of the
Honourable Mr. Justice Gascon
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BETWEEN:
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JUAN CAMILO GOMEZ FLOREZ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Juan Camilo Gomez Florez,
is a citizen of Colombia. Mr. Florez is applying for judicial review of a
decision rendered on July 8, 2015, by the Refugee Protection Division [RPD]
of the Immigration and Refugee Board of Canada. In its decision, the RPD
refused to recognize Mr. Florez as a Convention refugee under sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001 c 27,
because his account is not credible and he receives state protection in
Colombia.
[2]
Mr. Florez argues that the RPD erred in
rendering its decision when it doubted his credibility and when it found that
Colombia could offer him the alleged protection. Mr. Florez therefore
asked the Court, through this application for judicial review, to set aside the
RPD's decision and return the case to the RPD so that his request could be
reassessed by a differently constituted panel in light of all the evidence
submitted.
[3]
The sole issue is to determine whether the RPD's
decision was reasonable.
[4]
For the reasons below, Mr. Florez's
application for judicial review must be dismissed. In fact, I cannot identify
any error in the RPD's decision that would justify the Court's intervention. I
find the RPD's conclusions regarding Mr. Florez's account lacking
credibility and the matter of state protection to be reasonable and to clearly
fall within the possible, acceptable outcomes in the circumstances.
II.
Background
A.
The Facts
[5]
Mr. Florez is from the city of Cali in
Colombia. In October 2014, Mr. Florez began frequenting a park in the
Las Cascadas neighbourhood of Cali, which is known as a haven for drug users,
in order to give out information to youth and help them stop using substances.
When he heard some youths saying that members of the criminal organization Los
Urabeños were using them to transport drugs, Mr. Florez advised them not
to do so, not to join Los Urabeños, and to denounce them.
[6]
In December 2014, two men threatened
Mr. Florez when he left the park, shoving him and telling him not to
interfere in Los Urabeños business. After the assault, Mr. Florez went to
the office of the Attorney General in Cali. An employee took his deposition and
gave him a form to request protection from the national police. An officer then
told him that the Colombian police do not have the necessary resources to
protect him, and that officers would go to his home to recommend measures to
take and provide him with a list of numbers to call in an emergency.
[7]
Later in December, Mr. Florez received a
call in which the caller referred to his visit to the Attorney General's
office, saying that Mr. Florez was now considered an enemy of Los
Urabeños. The caller threatened to kill Mr. Florez.
[8]
The next day, Mr. Florez spoke with the
ombudsman's office, and was told that the office would refer his case to the
police to accelerate the ongoing investigation. The ombudsman's representative
also advised that Mr. Florez move. That same day, Mr. Florez moved in
with a friend of his parents in the city of Pereira, more than 200 kilometres
from Cali. In January 2015, a police officer visited Mr. Florez's
parents at their home in Cali and gave them written recommendations to ensure
Mr. Florez's safety.
[9]
On January 21, 2015, an armed man grabbed
Mr. Florez in the street in Pereira and tried to abduct him. Mr. Florez
successfully escaped his attacker and fled the scene in a taxi. Mr. Florez
then went to the Attorney General's office in Pereira to file a complaint. The
employee recommended that he return to Cali to modify his complaint from
December 2014, which was already under investigation. The Pereira police
advised that he leave the city.
[10]
Two days later, Mr. Florez headed to
Bogota, 300 kilometres from Pereira, where he moved in with a cousin.
Before the end of January, a threatening letter from Los Urabeños arrived at
the home of Mr. Florez's parents in Cali. The letter said that Mr. Florez
was a [translation] “military target” and that he escaped in Pereira but
next time “we won't miss you, death to our enemies, we have
contacts everywhere.”
[11]
Mr. Florez obtained his passport on
January 28, 2015, and left Colombia for the United States on February 2.
He claimed refugee protection at the Canadian-American border on February 6.
B.
The RPD's decision
[12]
In its decision, the RPD first noted that
Mr. Florez failed to provide reasonable explanations for some of the main
elements of his story, meaning it lacks credibility. For example, Mr. Florez
said that the person who received his complaint at the Attorney General's
office in Cali did not faithfully record his account, notably omitting his
statements encouraging the youths in the park to denounce the paramilitary
organization and not to be recruited into their ranks. However, the copy of the
complaint filed by Mr. Florez expressly refers to these acts. The RPD
finds that in unduly seeking to cast doubt on the efforts of the Colombian
state to protect him, Mr. Florez damaged his credibility.
[13]
The RPD further finds that Mr. Florez did
not satisfactorily explain how he managed to escape his assailants during the
incident in Pereira. In its decision, the RPD observed that Los Urabeños are
mainly commanded by former paramilitary members of the Revolutionary Armed
Forces of Colombia [FARC]. The RPD therefore has no doubts about this criminal
organization's effectiveness and finds that [translation]
“the assailants failing in their attack demands an
explanation that the refugee protection claimant was unable to provide.”
The RPD thus concludes that the assault in Pereira reported by Mr. Florez
did not take place.
[14]
The RPD also noted that Mr. Florez's
behaviour was not that of a person fearing for his life. Since his attackers
had information about him, the RPD finds it unlikely that he would choose to go
live with a friend of his parents in Pereira and then a cousin in Bogota. In
moving in with a family member in Bogota, Mr. Florez erased any advantage
he might have gained by leaving Pereira. Moreover, Mr. Florez did so even
though his attackers had already managed to find him once before when he left
Cali to live with a friend of his parents in Pereira. Mr. Florez knew
about alternative solutions available to him, and also had the financial means
to retain the services of a lawyer or buy a plane ticket.
[15]
Finally, the RPD considers Mr. Florez's explanations
of his failure to request refugee protection in the United States to be
unsatisfactory. The RPD did not believe Mr. Florez when he claimed to be
afraid of discrimination or mistreatment from American authorities.
[16]
Mr. Florez also submitted as evidence a
letter from his counsel attesting that Mr. Florez had received death
threats and referring to the assault he suffered in Pereira. The RPD assigns no
probative value to this evidence, as there is no way for counsel to attest that
an event truly occurred if he was not present for it. The RPD also rejects the
letter from Los Urabeños allegedly received by Mr. Florez's parents at
their home, which threatened Mr. Florez and stated that Los Urabeños knew
he was living in Pereira. Without any information on its origin, the RPD finds
that this letter is not sufficient to establish Mr. Florez's credibility.
[17]
For all these reasons, the RPD rejects Mr. Florez's
claim for refugee protection.
C.
Standard of review
[18]
It is well established that, with regard to the
credibility or plausibility of a refugee protection claimant, the RPD's
conclusions are factual and command a high degree of judicial deference,
considering the role of the trier of fact in the administrative tribunal (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 [Khosa] at
paragraph 59; Lawal v Canada (Citizenship and Immigration), 2015 FC
155 at paragraph 9; Martinez Giron v Canada (Minister of Citizenship
and Immigration), 2013 FC 7 at paragraph 14; Dong v Canada
(Minister of Citizenship and Immigration), 2010 FC 55 at paragraph 17).
[19]
When it comes to refugee matters, the assessment
of credibility is the very core of the expertise of administrative tribunals,
and it is closely related to the facts of a given case (Pepaj v Canada
(Minister of Citizenship and Immigration), 2014 FC 938 at paragraph 13,
Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116
at paragraphs 7‑8). The RPD is therefore better positioned to assess
the credibility of a refugee claimant, since it can see the claimant in a
hearing, observe the claimant's manner, and hear the claimant's testimony. The
tribunal thus has the opportunity and the capacity to judge the claimant's
testimony, behaviour, candidness, and spontaneity of response, as well as the
coherence and uniformity of the claimant's statements. Moreover, the RPD
benefits from the specialized knowledge of its members in assessing evidence
that deals with facts related to their field of expertise (El‑Khatib v
Canada (Citizenship and Immigration), 2016 FC 471 at paragraph 6).
[20]
Since it is a mixed issue of fact and law, the
applicable standard of review for questions of credibility and assessment of
evidence by the RPD is therefore that of reasonableness (Aguebor v Canada
(Minster of Employment and Immigration), [1993] FCJ No 732 (FCA) [Aguebor]
at paragraph 4; Bikoko v Canada (Citizenship and Immigration), 2015
FC 1313 at paragraph 8; Cortes v Canada (Citizenship and Immigration),
2014 FC 598 at paragraph 12; Zhou v Canada (Citizenship and
Immigration), 2013 FC 619 at paragraph 26). In such questions of
credibility and assessment of evidence, the Court must not substitute its point
of view for that of the administrative tribunal, even if that point of view
could, in the Court's eyes, lead to a better result (Khosa at paragraph 59).
The Court must only intervene if the decision-making process fails to be
transparent and intelligible, and if the decision does not “fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] at paragraph 47).
[21]
The reasons behind a decision are considered to
be reasonable “if the reasons allow the reviewing court
to understand why the tribunal made its decision and permit it to determine whether
the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses] at paragraph 16). In this context, the
Court must exercise deference toward the tribunal's decision. Its mission is
not to weigh the case's evidence once again or to interfere with the tribunal's
conclusions of fact; instead, it should limit itself to determining whether a
conclusion is irrational or arbitrary (Mikhno v Canada (Minister of
Citizenship and Immigration), 2010 FC 385 at paragraphs 32‑33; Diallo
v Canada (Minister of Citizenship and Immigration), 2007 FC 1062 at
paragraph 30).
[22]
To assess reasonableness, the Court must review
the tribunal's reasons, but it can also examine the case itself, if necessary,
to assess the reasonableness of the decision (Newfoundland Nurses at
paragraph 15). That said, judicial review is not a “line‑by‑line treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd., 2013 SCC 34 at paragraph 54).
[23]
The assessment of a refugee protection
claimant's credibility must be transparent and intelligible (Hilo v Canada
(Minister of Employment and Immigration) (1991), 130 NR 236 (FCA) [Hilo]
at paragraph 6). Thus, the tribunal's reasons must constitute an
assessment of the applicant's credibility expressed “in
clear and unmistakable terms.” Conversely, a vague and general analysis
would remain insufficient, since a tribunal cannot be satisfied with drawing
conclusions on credibility without explaining why or how that credibility is
disputed or appears unsatisfactory.
[24]
This standard of reasonableness is also applied
to the RPD's conclusions concerning state protection (Canada (Citizenship
and Immigration) v Flores Carrillo, 2008 FCA 94 [Flores Carrillo]
at paragraph 36; Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at paragraph 38; Ruano v Canada
(Citizenship and Immigration), 2015 FC 1023 at paragraph 36; Orellana
Ortega v Canada (Minister of Citizenship and Immigration), 2012 FC 611 at
paragraph 7).
III.
Analysis: Is the RPD's decision reasonable?
[25]
According to Mr. Florez, the RPD erred in
its assessment of his credibility and in its analysis of the state protection
offered in Colombia.
[26]
Mr. Florez first of all claims that the
RPD's conclusions concerning his lack of credibility are unreasonable. He
specifically claims that the RPD erred in considering his case incomplete, in
doubting his uncontradicted testimony on the events in Pereira, in finding his
behaviour inconsistent when seeking refuge in Colombia, and in criticizing his
failure to seek refugee protection in the United States. According to Mr. Florez,
concrete reasons supported by cogent evidence must exist before a refugee
protection claimant is disbelieved (Vodics v Canada (Citizenship and
Immigration), 2005 FC 783 at paragraph 11). Mr. Florez argues
that, to conclude there is a lack of credibility based on contradictions or
differences, there must be tangible evidence, not simply minor inconsistencies.
[27]
I do not agree with Mr. Florez's analysis
concerning the issues of credibility and the RPD's assessment. In short, Mr. Florez
presents his objection to the RPD's conclusions without also showing how the
decision is unreasonable. The Court instead shares the Minister's opinion that
the RPD considered all the evidence in the record and that the evidence amply
supports the RPD's findings on Mr. Florez's lack of credibility. The
assessment of the evidence and his credibility is a matter of the RPD's
discretion, and it is not up to the Court to substitute its own interpretation.
[28]
The principles governing the manner in which an
administrative tribunal must assess the credibility and plausibility of a
refugee protection claimant's account can be summarized as follows. First of
all, note that the presumption of truthfulness laid out in the Maldonado v
Canada (Minister of Employment and Immigration) [1980] 2 FC 302 (FCA)
decision in paragraph 5 is not unchallengeable, and the applicant's lack
of credibility as a refugee protection claimant suffices to rebut it.
Furthermore, even though they may be insufficient when taken individually or in
isolation, the accumulation of contradictions, inconsistencies and omissions
regarding crucial elements of a refugee protection claimant's account can
support a negative conclusion about his credibility (Sary v Canada (Minister
of Citizenship and Immigration), 2016 FC 178 at paragraph 20; Quintero
Cienfuegos v Canada (Minister of Citizenship and Immigration), 2009 FC 1262
at paragraph 1).
[29]
Of course, the RPD cannot base its findings
regarding the claimant's lack of credibility on minor contradictions arising in
evidence that is secondary or peripheral to the refugee protection claim. The
tribunal must therefore not delve too deeply in its approach or conduct a “microscopic” analysis of the evidence. In other
words, not all inconsistencies or implausibilities will support a negative
finding of credibility; such findings should not be based on microscopic
examination of issues irrelevant or peripheral to the claim (Attakora v
Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA) at
paragraph 9; Cooper v Canada (Minister of Citizenship and Immigration),
2012 FC 118 [Cooper] at paragraph 4; Akhigbe v Canada (Minister
of Citizenship and Immigration) 2002 FCT 249 at paragraph 16).
[30]
However, a lack of credibility concerning the
central elements of a claim could extend to other elements of the refugee
protection claim (Sheikh v Canada (Minister of Employment and Immigration),
[1990] FCJ No 604 (FCA) at paragraphs 7‑9) and generalized to all of
the documentary evidence presented to corroborate a version of the facts.
[31]
The RPD is also entitled to draw conclusions
concerning the credibility of a refugee protection claimant based on
implausibilities, common sense and rationality, and to reject unchallenged
evidence if it is inconsistent with the probabilities affecting the case as a
whole (Hilo at paragraph 4; Shahamati v Canada (Employment and
Immigration), [1994] FCJ No 415 (FCA) at paragraph 2; Yin v Canada
(Citizenship and Immigration), 2010 FC 544 at paragraph 59; Hernandez
Utrera v Canada (Citizenship and Immigration), 2007 FC 1212 at paragraph 61;
Toora v Canada (Citizenship and Immigration), 2006 FC 828 [Toora]
at paragraph 44). Nonetheless, the RPD's conclusions and inferences must
always remain reasonable and be formulated in clear and unmistakable terms (Cooper
at paragraph 4).
[32]
The RPD's findings on Mr. Florez's lack of
credibility in this case are based on several valid grounds. It suffices to
mention the following: the fact that Mr. Florez did not satisfactorily
explain in what manner the employee of the Attorney General's office in Cali
incorrectly recorded his deposition; the implausibility of the incident in
Pereira; Mr. Florez's behaviour after the alleged incidents; and Mr. Florez's
failure to seek refugee protection in the United States. These are central
elements of Mr. Florez's account.
[33]
Mr. Florez also mistakenly argues that
there were no inconsistencies in his behaviour when he went to live with his
cousin after the alleged incident in Pereira, since he felt safe with people he
trusted, who knew about his situation and were protecting him. However, given
that he was tracked down in Pereira when he was staying with a family friend,
the RPD can logically conclude that staying with a cousin in Bogota would
cancel out any advantage he would have gained from leaving Pereira. The RPD
supported this reasoning by noting that Mr. Florez went to stay at a hotel
after the assault and therefore knew the options available and accessible to
him. The RPD can reject evidence if it is not in “harmony
with the preponderance of the probabilities which a practical and informed
person would readily recognize as reasonable in that place and in those
conditions” (Toora at paragraph 44).
[34]
The Court definitively finds that the RPD's
analysis of Mr. Florez's credibility is not tainted by any reviewable
error. The Court must show significant deference to the RPD and the RAD with
respect to the assessment of refugee claimants’ credibility, since they are the
very core of the RPD's authority (Dunsmuir at paragraph 53; Aguebor
at paragraph 4; Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319 at paragraph 22). There is no doubt in this
case that the RPD's determinations to support its conclusions about Mr. Florez's
non-credibility are reasonable and fall within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[35]
Moreover, the fact that a piece of evidence is
not expressly dealt with in a decision does not render it unreasonable when
there are sufficient grounds to assess the tribunal’s reasoning (Corzas
Monjaras v Canada (Minister of Citizenship and Immigration), 2010 FC 771 at
paragraph 20; Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No. 1425 [Cepeda-Gutierrez] at
paragraph 16). The RPD is presumed to have weighed and examined all the
evidence submitted to it, unless it is demonstrated not to have done so (Newfoundland
Nurses at paragraph 16; Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) at paragraph 1). In this case, I
am satisfied that the RPD considered all the evidence, even if it does not
refer directly to all its components. It is only when a tribunal is silent on
evidence clearly pointing to the opposite conclusion that the Court can
intervene and infer that the tribunal overlooked the contradictory evidence
when making its finding of fact (Cepeda‑Gutierrez at
paragraph 17). That is not the case here.
[36]
The Court’s mission is not to reassess pieces of
evidence in the record; rather, it must limit itself to finding whether a
conclusion is irrational or arbitrary. According to the reasonableness
standard, it is sufficient that the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
Court not substitute its own opinion for that of the panel. The arguments put
forward by Mr. Florez simply express his disagreement with the RPD’s
assessment of the evidence and in fact ask the Court to prefer its own
assessment and reading to that of the tribunal. However, this is not the
Court's role in matters of judicial review (Kanthasamy v Canada (Minister of
Citizenship and Immigration), 2014 FCA 113 at paragraph 99). The
reasons for the RPD's decision on Mr. Florez's lack of credibility have
the qualities of justification, transparency and intelligibility, and allow it
to be determined that the conclusion falls within the range of possible,
acceptable outcomes. There is therefore no reason for the Court to intervene.
[37]
On the matter of state protection, Mr. Florez
argues that the RPD erred in saying that Colombian authorities took measures proportional
to the threats he received. Mr. Florez states that he sought the
protection of his country's authorities every time he needed it, but they did
nothing concrete to help him. He argues that the RPD did not consider the
evidence that corroborated his version of the facts.
[38]
I do not share Mr. Florez's opinion.
[39]
The RPD's finding on the question of state
protection is secondary, since the tribunal could validly reject Mr. Florez's
refugee protection claim based on his lack of credibility without evaluating
the question of state protection. Furthermore, it falls upon the refugee
claimant to exhaust all possible remedies in his or her country before
requesting international protection. It was not unreasonable for the RPD to
conclude that Mr. Florez did not make use of all the remedies available to
him in Colombia, especially in Pereira, before requesting protection from
Canada.
[40]
In fact, the RPD based its finding on the
following elements: Colombian authorities, at every step, took measures
proportional to the threats against Mr. Florez; Mr. Florez did not go
to the Colombian police for the urgent protection recommended by the
ombudsman's office in December 2014; the reaction time of the police in
January 2015 was quick and far from unreasonable; the evidence does not
show that the ombudsman's office advised Mr. Florez to move to Pereira in
December 2014; Mr. Florez's counsel in Colombia did not take legal
measures to contest the refusal by the Attorney General's office to modify the
complaint in December 2014 following the assault in Pereira; and Mr. Florez
did not go to other police stations or other officials in Pereira.
[41]
On the matter of state protection, a refugee
protection claimant must rebut the presumption of adequate state protection
with clear and convincing evidence (Moran Gudiel v Canada (Minister of
Citizenship and Immigration), 2015 FC 902 [Moran Gudiel] at
paragraph 40). Perfect state protection is not required, only adequate
protection (Moran Gudiel at paragraph 31; Ferko v Canada
(Citizenship and Immigration), 2012 FC 1284 at paragraph 44).
[42]
In this case, Colombian authorities took measures
to offer protection to Mr. Florez, and he cannot claim that the
authorities were unable to protect him. In fact, the capacity of the Colombian
police to protect Mr. Florez was only compromised by his failure to
exhaust all remedies at his disposal.
[43]
Tribunals must presume that a state is capable
of protecting its own citizens. This presumption can only be overruled if there
is clear, convincing confirmation of the state's inability to ensure the
refugee claimant's protection (Canada (Attorney General) v Ward, [1993]
2 SCR 689 at page 724; Flores Carrillo at paragraphs 17‑19,
28 and 30; Canada (Minister of Employment and Immigration) v
Villafranca, [1992] FCJ No 1189 (FCA) at paragraph 6). This burden of
proof falls on the refugee claimant.
[44]
In Mr. Florez's case, the RPD carefully
examined the documentary evidence and the principles of state protection, as
well as Mr. Florez's unsuccessful attempts to obtain protection from
Colombian authorities before fleeing to the United States and Canada. A refugee
claimant's decision to flee before the police have time to conduct an
investigation and carry out a suitable response is not equivalent to the
absence of state protection.
[45]
Furthermore, the Minister rightly mentions the
Federal Court of Appeal in Canada (Minister of Citizenship and
Immigration) v Zeng, 2010 FCA 118 [Zeng] at paragraph 19, which
states that asylum shopping is incompatible with the surrogate dimension of international
refugee protection. Also, Mr. Florez's failure to make a previous request
for asylum in the United States is incompatible with the principle established
by the Zeng decision.
[46]
I therefore find that, under these
circumstances, the RPD's decision on Colombian state protection is not at all
unreasonable.
IV.
Conclusion
[47]
For the foregoing reasons, Mr. Florez's
application for judicial review is dismissed. The RPD's decision in refusing
his refugee protection claim is transparent and intelligible, and its conclusions
regarding Mr. Florez's lack of credibility fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. Furthermore, the RPD committed no error in its assessment of the
protection offered by the Colombian state.
[48]
The parties did not raise any serious questions
of general importance for certification in their submissions, and I agree that
there are none in this case.
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