Docket: IMM-5156-15
Citation:
2016 FC 684
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
|
BETWEEN:
|
|
LUZ NELLY
OROZCO CORTES
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board rejected Luz Nelly Orozco Cortes’ claim for
refugee protection in Canada based on an adverse finding of credibility. Ms.
Cortes has sought judicial review of that decision pursuant to s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
Credibility findings are the “heartland” of the RPD’s jurisdiction. The RPD had the
benefit of hearing Ms. Cortes’ testimony and assessing her demeanour. While Ms.
Cortes makes a compelling argument that the RPD unreasonably discounted her
corroborative evidence as having “no probative value”,
I am satisfied that the documents were not rejected solely because of the
adverse credibility finding. The application for judicial review is therefore
dismissed.
II.
Background
[3]
Ms. Cortes is 40 years old. She based her claim
for refugee protection on her fear of the Revolutionary Armed Forces of
Colombia [FARC], Colombia’s largest guerilla group. Her Personal Information
Form [PIF] included the following allegations.
[4]
In 2004, Ms. Cortes’ uncle hired her to manage
three bingo halls that were operated illegally. The FARC demanded that Ms.
Cortes’ uncle pay “protection money”. The bingo
halls went bankrupt in mid-2006. Due to her uncle’s failure to pay the FARC,
the group began to threaten Ms. Cortes’ family.
[5]
In January 2007, the FARC left a note at Ms.
Cortes’ residence demanding three million pesos. In April 2007, the FARC sent
her family another note indicating that the family was now a “military objective”. On May 25, 2007, Ms. Cortes’
cousin was shot and killed. Her other cousin, whom she considered a brother,
went into hiding, but she continued to work. In June 2007, she took a brief
leave of absence from her job in foreign trade and also went into hiding. On
July 7, 2007, Ms. Cortes’ uncle requested protection from the public
prosecutor’s office in Colombia.
[6]
On August 6, 2007, Ms. Cortes’ cousin was shot
and killed. Shortly thereafter, on August 17, 2007, two FARC members riding on
a motorcycle attempted to murder Ms. Cortes while she was driving.
[7]
In March 2008, Ms. Cortes resigned from her job
and lived in hiding until she fled to Mexico in December 2009. She then
travelled to the United States of America, where she remained for a year and
four months. She arrived in Canada on April 18, 2010 and made a claim for
refugee protection at the border.
III.
Decision under Review
[8]
In a decision dated October 20, 2015, the RPD
refused Ms. Cortes’ refugee claim on the grounds that she was neither a
Convention refugee nor a person in need of protection as defined in ss 96 and
97 of the IRPA.
[9]
The RPD accepted Ms. Cortes’ identity as a
citizen of Colombia, and also accepted that some of her family members had been
murdered by the Autodefensas Unidas de Colombia [AUC], another guerilla
group in Colombia. However, the RPD found that the central element of Ms.
Cortes’ claim, namely that she feared extortion by the FARC, was not credible.
The RPD based its conclusion on the following omissions and inconsistencies in
her evidence.
[10]
First, Ms. Cortes did not mention in her PIF
that she had worked as the manager of her uncle’s bingo halls for three years.
The RPD considered this omission to be significant because her fear of the FARC
was allegedly due to the non-payment of a debt arising from the operation of
the bingo halls. The RPD noted that she did include this occupation in an
amended PIF that was submitted one month later. The RPD questioned Ms. Cortes
about this omission, and was not satisfied with her explanation that she
thought she was required to list in her PIF only her legitimate occupations,
not her illegal operation of the bingo halls.
[11]
Second, Ms. Cortes provided inconsistent
testimony regarding when her uncle’s bingo halls had opened and closed. She
also provided varying answers when asked how many threats she had received from
the FARC. In her PIF, she mentioned receiving two threats in 2007. At the
hearing, she testified that the FARC had sent her three threatening notes. When
asked about a fourth note that appeared in the record, she acknowledged that
there were in fact four threats. She also provided inconsistent testimony
regarding when she received the final threat from the FARC. The RPD was not
satisfied with her explanation that she was nervous and that her memory was
affected by her recent pregnancy.
[12]
Third, Ms. Cortes failed to provide
corroborative evidence that the bingo halls ever existed. The RPD acknowledged
that there is a presumption that a refugee claimant’s sworn testimony will
usually be sufficient to establish facts without corroborative evidence.
However, given the RPD’s credibility concerns, it held that corroborative
evidence was necessary to substantiate Ms. Cortes’ claim regarding the bingo
halls.
[13]
Fourth, the RPD found that the corroborative
evidence submitted by Ms. Cortes in support of her claim had no probative
value. Having rejected Ms. Cortes’ credibility, it held that the documentary
evidence was insufficient to corroborate her claim.
[14]
Fifth, the RPD considered some of Ms. Cortes’
actions to be inconsistent with her alleged fear of the FARC. The RPD observed
that she continued to attend her workplace for over a year after her cousins
were murdered, and after the FARC allegedly attempted to murder her. When questioned,
Ms. Cortes explained that she felt safe at work because it offered security.
The RPD was not satisfied with this explanation, and found that her daily
commute to work conflicted with her testimony that the FARC was a powerful
group that could locate her anywhere in the country.
[15]
Finally, the RPD considered the documents that
Ms. Cortes submitted post-hearing to demonstrate that pregnancy may affect a
woman’s short-term memory. However, it was not persuaded that Ms. Cortes’
pregnancy adversely affected her ability to testify consistently regarding
historical matters that were relevant to her claim.
IV.
Issue
[16]
The sole issue raised by this application for
judicial review is whether the RPD’s decision was reasonable.
V.
Analysis
[17]
The RPD’s credibility findings are owed the
highest degree of deference, and are subject to review by this Court against
the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9; Tariq
v Canada (Citizenship and Immigration), 2015 FC 692 at para 10).
[18]
Ms. Cortes says that the RPD engaged in a
microscopic analysis of the evidence, in particular her failure to include her
part-time job as manager of the bingo halls in her initial PIF. However, her
management of the bingo halls for a period of three years was central to her
claim for refugee protection. This was the reason she gave for her fear of
persecution by the FARC. In my view, it was open to the RPD to regard this as a
significant omission.
[19]
Ms. Cortes also says that she did not mention
the bingo halls in her reports to the police because they were illegal. While
this may appear to be a reasonable explanation, it was not offered to the RPD
at the hearing. The RPD cannot be criticized for failing to accept an
explanation that was never given.
[20]
The RPD acknowledged that claimants may be
nervous during hearings and may have difficulty recalling exact dates. However,
the RPD noted that Ms. Cortes was able to recall exact dates in other parts of
her testimony. It also noted that she is an educated woman. It was open to the
RPD to find that her inability to spontaneously and consistently answer simple
questions regarding the timing of significant events detracted from her
credibility.
[21]
It was also reasonable for the RPD to draw an
adverse inference from Ms. Cortes’ inability to remember that the FARC had sent
her a fourth threatening note in 2007. The RPD found that the summer of 2007
was a significant time in Ms. Cortes’ life. Her cousin was murdered and the
FARC attempted to kill her as well. The RPD reasonably found that her failure to
mention a fourth threatening note from the FARC shortly after the assassination
attempt was a significant omission.
[22]
Credibility findings are the “heartland” of the RPD’s jurisdiction (Lubana v
Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 7,
[2003] FCJ No 162 (Fed TD). The RPD had the benefit of hearing Ms. Cortes’
testimony and assessing her demeanour. Its credibility findings are owed
significant deference.
[23]
Ms. Cortes makes a compelling argument that the
RPD unreasonably rejected her corroborative evidence as having “no probative value”. She relies on this Court’s
decision in Chen v Canada (Minister of Citizenship and Immigration), 2013
FC 311 at paragraphs 20-21, and says that the RPD engaged in “inverted reasoning”.
[24]
It is true that the language chosen by the RPD
may leave this impression: “having not believed the
claimant on essential aspects of her claim, the tribunal finds no probative
value in the documents produced in an attempt to corroborate her allegations”.
However, when the decision is read as a whole, it becomes clear that the
documents that were offered to corroborate Ms. Cortes’ claim were not rejected
solely because of the adverse credibility finding.
[25]
The record included written complaints filed by
Ms. Cortes with the police; a declaration to the police made by her aunt; and a
copy of her uncle’s complaint to the police following the murder of her cousin.
None of these documents mentioned the operation of the bingo halls. The uncle’s
police complaint referred to the AUC, rather than the FARC. One of the police
reports was filed by Ms. Cortes 24 hours before her departure from Colombia,
and mentioned no specific incidents.
[26]
The RPD placed little weight on threatening
notes that Ms. Cortes allegedly received from the FARC because they included
her two deceased cousins in a list of individuals who were ordered to leave the
area within 48 hours. The RPD held that the FARC would have known that they had
already killed these two individuals, and would not have demanded that they
leave the area. The RPD also observed that the FARC’s threatening notes did not
refer to the debt that was allegedly owed by Ms. Cortes’ family.
[27]
Ms. Cortes says that these conclusions appear to
be speculative and not grounded in evidence. However, there were many reasons
why the RPD placed little weight on the evidence submitted to corroborate her
claim, and its occasional speculation is not sufficient to warrant the
intervention of this Court.
[28]
Finally, Ms. Cortes argues that the RPD failed
to conduct a separate s 97 analysis of her claim. Relying on this Court’s
decision in Bouaouni v Canada (Minister of Citizenship and Immigration), 2003
FC 1211 at paragraph 41, she says that a negative credibility finding, which
may be determinative of a claim under s 96 of the IRPA, is not necessarily
determinative of a claim under s 97.
[29]
Whether the RPD was obliged to conduct a
separate s 97 analysis involves questions of fact and mixed fact and law, and
is generally subject to review against the standard of reasonableness (Dawoud
v Canada (Minister of Citizenship and Immigration), 2015 FC 1110 at para 33
[Dawoud]).
[30]
Negative credibility findings are sufficient to
foreclose an analysis under s 97 if there is no objective evidence to support
the conclusion that an applicant faces a personalized risk (Lopez v Canada
(Minister of Citizenship and Immigration), 2014 FC 102 at para 46; Dawoud
at paras 44-45). Ms. Cortes was unable to establish that she had in fact
been threatened by the FARC, or that she was subjected to any personal risk. I
am therefore not persuaded that the RPD was required to conduct a separate s 97
analysis. This Court has held that if the evidentiary basis for both claims is
the same, and if the claimant has not provided further information in relation
to s 97, then there is no need to conduct a separate s 97 analysis (Canada
(Minister of Citizenship and Immigration) v Nwodi, 2014 FC 520 at
para 14, citing Ayaichia v Canada (Minister of Citizenship and Immigration),
2007 FC 239 at paras 19-20).
VI.
Conclusion
[31]
For the foregoing reasons, the application for
judicial review is dismissed. Neither party proposed that a question be
certified for appeal.
Email this Content