Date:
20030331
Docket:
IMM-1830-02
Citation:
2003 FCT 376
Ottawa, Ontario, this 31st
day of March, 2003
PRESENT: THE HONOURABLE MR. JUSTICE
BLANCHARD
BETWEEN:
CDE
Applicant
-
and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED
REASONS FOR ORDER AND ORDER
[1]
The applicant, CDE, seeks judicial review of the April 4, 2002 decision
of the Convention Refugee Determination Division of the Immigration and Refugee
Board (the “Board”). The Board determined that the applicant was not a
Convention refugee.
FACTS
[2]
The applicant is a citizen of Colombia. The applicant, a university
graduate with a degree in business administration, began to work for a company
in Medellin known as”X”. She was hired as the director of the human resources
department. She alleges that on August 8, 2000, she received an envelope marked
“Personal” from the People’s Armed Commandoes (in Spanish, Comandos Armados
del Pueblo, or “CAP”). The group describes itself as being
associated with the Bolivarian Militia Movement, and as working toward the
interests of the less favoured classes.
[3]
In the letter, the group directed the applicant to do three things. She
was told not to fire workers, to give the group twenty per cent of her salary
each month, and not to report the letter or its demands to the authorities. She
was warned that if she were to go to the authorities, the group would take
action that the applicant would regret.
[4]
The applicant was aware that death threats had been made to company
officials, in light of the situation at the company and that of the country.
She has discovered this while looking at correspondence between management and
the predecessor of her position. She had discussed the letter with her father
but with no one else. Despite the letter, the applicant dismissed two employees
at the request of management, apparently for unsatisfactory performance.
[5]
On the evening of August 11, 2000, the applicant was approached by two
men, one of whom pointed a gun at her and addressed her with insults and
obscenities. This man expressed his displeasure that the group’s direction not
to fire workers had been ignored. On August 14, the applicant submitted her
resignation without explanation. The next day, the applicant received
additional threats by telephone. The group had apparently been made aware of
her resignation. On August 17, she received another call, ordering her to
return to her job by August 28.
[6]
The applicant left Medellin and went to the farm of a friend outside the
city until she left Colombia on September 18, 2000. She had been in possession
of a U.S. visa for approximately one and one-half years, and decided to use it
to travel to New York. From September 18 to December 3, 2000, the applicant was
in the U.S. and occasionally kept in touch with her father. He informed her
that additional threatening calls had been made. On December 3, 2000, the
applicant entered Canada at Niagara Falls, Ontario, and made her refugee claim
at that point of entry upon arrival. The applicant resided briefly in Toronto
before moving to Vancouver.
[7]
The applicant states in her Personal Information Form (“PIF”) that she
did not seek protection from authorities in Colombia out of fear that the armed
militia, with its network of contacts, would find out that she had gone to the
police and exact retaliation for having done so. She also claimed that she did
not think about claiming refugee protection anywhere until she was told, during
her stay in New York, that Canada is a signatory to the Convention on Refugee
Protection and could provide her with safety and protection.
DECISION
OF THE BOARD
[8]
The Board, sitting as a panel of two members, determined that the
applicant was not a Convention refugee. The Board decided that the evidence of
the applicant was not credible and that, apart from the credibility issue, the
applicant failed to seek the protection of the state. Such protection was
reasonably available to her in Colombia.
[9]
The Board noted several elements of the applicant’s narrative which it
found implausible. It did not believe her statement that she did not feel that
there was anyone at the company that she could trust, given that her
appointment to a senior position at the company reflected that company’s trust
in her. The Board also found not to be reasonable her explanations for not
telling anyone else at the company, including management and security
personnel, about the threats that had been made to her or about the
correspondence to the person who had previously occupied her position.
[10]
The decision of the applicant to continue working notwithstanding the
advice of her father, a former police officer, not to return to the job was
also found to be difficult to accept in light of the danger in which she
claimed to be. She did not present the letter expressing these threats when she
submitted documents in support of her refugee claim upon entering Canada, but
did make available other, less significant documents. For these reasons, the
panel gave little weight to the letter in which the threats allegedly had been
expressed.
[11]
The panel also stated in its assessment of credibility that the
demeanour of the applicant during testimony was not consistent with the
emotions that would have been expected of someone describing such events. At
page 5 of its reasons, the Board noted:
In assessing credibility, the panel also noted the
claimant’s demeanour while she was testifying. At no time during the hearing
did she express the sort of emotions that would have reasonably been expected
had she related events that actually happened to her. Instead, she seemed to
have a rather remote and indifferent manner while she was testifying about
traumatic events, as if she was reciting a memorized script.
[12]
The Board went on to consider other aspects of the evidence of the
applicant and also found these elements to be lacking in credibility. The Board
refers to a letter that was prepared by the company which simply confirmed that
the applicant worked there in August 2000. The Board opined that the applicant
ought to have contacted the company to follow up on whether any other employee,
especially the successor to her position, received similar threats. Her failure
to do so was not explained to the satisfaction of the Board, and her
explanation as to why she let two workers go after being told not to fire
anyone also failed to satisfy the Board.
[13]
The incident in which a gun was pointed at her after she left her office
was not reported to the company or to any state authority. This raised doubt
both regarding the truthfulness of the account of this attack and with respect
to the claim of inadequate state protection. The delay of the applicant in
leaving Colombia and her failure to claim refugee protection while in the U. S.
also raised doubts about her subjective fear of persecution and the credibility
of her allegations.
ISSUES
[14]
The issues, as framed by the parties, are the following:
1. Did the Board base its decision on
findings of fact that were erroneous or made without regard to the evidence?
2. Did the Board err in law in finding that
state protection was available to the applicant?
ANALYSIS
Credibility
[15]
The standard of review for findings of fact made by the Board is that of
patent unreasonableness. Normally, findings of the Board with respect to
credibility will not be disturbed if they are supported by reasons made in
clear and unmistakable terms: Hilo v. Canada (Minister of Citizenship
and Immigration) (1991), 15 Imm. L.R. (2d) 199. However, even when the
Board does give reasons for its findings of credibility, those reasons must be
supported by the evidence that was before the Board. Where the Board has made a
decision without regard to the evidence before it, or has based its decision on
irrelevant or extraneous considerations, that decision warrants intervention by
this Court: paragraph 18.1(4)(d) of the Federal Court Act, R.S.C.
1985, c. F-7.
[16]
The Board found inconsistencies in the evidence of the applicant. Her
testimony was found to be both internally inconsistent and inconsistent with
other evidence. In addition, the Board found the applicant not to be credible
because her version of events was found to be implausible.
[17]
In determining the credibility of an applicant, a panel must take care
to ensure that all of the evidence, including documentary evidence, is
thoroughly and carefully considered. In her testimony, the applicant demonstrated
an acute awareness of the conditions of her country. She was aware that armed
commando groups penetrate every aspect of daily life in Colombia, including
office relations and such basic public services as local police forces. Her
decision not to tell anyone about the threatening letter, including company
management, was reasonable: she was petrified with fear. In particular, she
feared that she might become one of the many civilians who, according to the
documentary evidence, have been killed by militia groups.
[18]
The Board suggested that the company hired her out of a belief that it
had sufficient trust in her abilities to give her the position. Its expectation
was that this trust would be reciprocal; therefore, it found that it was
unreasonable for the applicant to share the incidents surrounding the threats
with company officials.
[19]
This conclusion on the part of the Board is belied by the documentary
evidence that shows that militia groups have access to information through a
variety of means, including having their members infiltrate various
organizations and communities. The preponderance of the evidence shows that
commando groups work in connection with the main guerrilla movements in
Colombia, including FARC, the known militia group that describes itself as an
armed revolutionary force. The applicant knew of their information gathering
techniques, including tapping telephone lines. She had a justifiable fear that
if she reported the incidents to someone at the company with whom she was not
well acquainted, and if that information was not kept confidential, it could
hurt her. The finding of the Board that her explanation for not telling anyone
at the company about the incidents made “no rational sense” and is not
supported by the evidence. Further, it does not necessarily follow that because
the company had sufficient trust in the applicant to hire her, that she was
logically compelled to report this sensitive information to her employer,
notwithstanding the potential risk this would entail given the circumstances.
[20]
There may have been certain individuals at work with whom the applicant
could have developed a good rapport and a sound working relationship. However,
in her testimony, she stated a fear that if the person at the company to whom
she reported the information failed to keep it in confidence, she would face
reprisals. She did not specify whether such a failure would be deliberate or
inadvertent. In my view, keeping quiet or “laying low” was a plausible course
of action in light of the general political climate, including the targeting of
civilians, mentioned in the documentary evidence.
[21]
Similar reasoning applies to the decision of the applicant not to report
to the police the attack that she suffered after work one evening. The report
on Colombia prepared by the Inter-American Commission on Human Rights, a body
of the Organization of American States, outlines the history of paramilitary
groups in Colombia and their position relative to police and other state
security agents in Colombia. The report states at paragraph 43:
[...] As was noted above, some paramilitary groups
have strong ties to elements of the State’s public security forces although
they often operate with significant autonomy.
[22]
The documentary evidence also included an information package from the
Research Directorate, Immigration and Refugee Board, dated January 2002. The
information package includes the following passages:
The report states that the “political work” of urban
militias includes indoctrination of youths, developing plans and infiltrating
members into different state institutions, while the “operational work” (operativo)
includes gathering information and following possible kidnap victims (who are
handed afterwards to rural detachments), sabotage, propaganda, inciting
violence during demonstrations, and terrorist acts as required by their
leadership (ibid)
...
Each guerilla group has its own urban militias in
different regions of the country, but the FARC has the largest network, with
its Milicias Bolivarianas which have been operating in the main
capital cities since 1987 (ibid). The next largest network is that of
the Milicias Populares of the ELN, followed by the Milicias Obreras
of the Ejército Popular de Liberación (EPL), and other smaller dissident groups
which began as branches of guerrilla groups but have evolved into organized
crime groups (ibid).
Some urban militia groups appear to be branches of a
guerrilla front or consider themselves independently-named fronts. For example,
a report on threats and attacks against the mayor of Cali reports that FARC
militias threatening to kill him described themselves as the “urban front
Manuel Cepeda Vargas,” while an ELN group that attempted to kill the mayor
described itself as “urban militias of the Jose Maria Becerra front” (ibid.
4 Oct. 1999).
In recent years, urban militias have been expanding
their presence throughout the main cities of Colombia and other smaller urban
centres, and authorities regard Medellin as the city with the highest
concentration of urban militias (ibid. 14 May 1999). These include the
Comandos Armados Populares (Armed Popular Commandos, CAP), which originally
formed part of the ELN urban militias and currently operate in various areas of
the capital of Antioquia; it is particularly known for its extortion of
merchants and businessmen, and at least one public transportation company of
the city is required to pay a certain amount for every bus that passes through
a specific area (ibid). (Emphasis added)
[23]
The applicant is aware that there are ties between some members of
paramilitary groups and some members of the police force or other state agents.
She also understands that paramilitary groups have sophisticated means of obtaining
information, and that news of her report to the police may have been
transmitted to such groups. Her failure to report to the police was consistent
with a fear for her life.
[24]
Décary J.A., writing for the Court in Aguebor v. Canada (Minister
of Employment and Immigration) (1993, 160 N.R. 315 (F.C.A.), stated that
the Board is in the best position to determine the credibility of an account
and draw the necessary inferences. Thus, findings based on the inferences drawn
by the Board are not subject to judicial review unless the inferences are so
unreasonable as to warrant the intervention of the Court.
[25]
Given the considerations discussed above, the inferences drawn in this
case were unreasonable to such an extent that it is necessary for the Court to
intervene. Inferences must be drawn with regard to all of the evidence. They
should not be based simply on a combination of the oral evidence and an
intuitive reaction to that evidence. The documentary evidence shows that armed
conflict in Colombia puts civilians in a particularly dangerous situation, and
daily interactions to which North Americans might give little thought must be
approached with caution in Colombia.
The decision of
the Board was made without adequate regard to this evidence, and ought to be
set aside on this basis.
[26]
In Leung v. Canada (Minister of Employment and Immigration)
[1994] F.C.J. No. 774, Jerome A.C.J. at paragraph 16 stated:
Given this clear obligation on the Board to base its
decision on the totality of the evidence, combined with the duty to justify its
credibility findings, it must be assumed that the Board’s reasons contain a
reasonably complete account of the facts which form the basis of their
decision. The Board will therefore err when it fails to refer to relevant
evidence which could potentially refute their conclusions of implausibility. My
review of the Board’s implausibility findings reveals that such an error has
occurred here.
[27]
In its decision, the Board stated that it gave no weight to the alleged
threats from the guerilla group. Included in its reasons for this finding was
the observation that it was not in the disclosure package of the respondent.
The Board stated that the applicant had provided documents of less significance
to agents of the respondent upon entry to Canada, but did not provide the
letter which contained the threats. This finding was made notwithstanding the
absence of a statutory declaration or interview notes by an immigration officer
to shed light on what might have occurred, with regards to the letter, at the
point of entry.
[28]
An examination of the certified record of the Board indicates that the
applicant did submit this letter to officials representing the respondent,
either upon entry to Canada or soon thereafter. A copy of the letter appears in
the first disclosure package of the respondent, at Exhibit 2 of the certified
record. A translation of the letter did not appear until a subsequent
disclosure package was submitted to the Board, and it was noted that the
signature of the translator was missing from this translation. Nonetheless, it
was manifestly unreasonable to fail to give weight to the letter on the basis
that the applicant did not submit the letter when the record is unclear or
arguably indicates otherwise.
[29]
The transcript of the hearing does not indicate that the applicant was
asked what happened at the port of entry or why she did not submit the letter
at that time. In Gracielome v. Canada (Minister of Employment
and Immigration) (1989) 9 Imm. L.R. (2d) 37 (F.C.A.), the Board’s decision
was overturned where the Court found contradictions. Not only did the Federal
Court of Appeal find unreasonable the determination that the evidence in question
contained contradictions, it also noted that the applicants were not given an
opportunity to clarify the Board’s perceived contradictions. Had the applicant
in the present case been asked what she submitted upon arrival in Canada, the
Board may have noted the presence of the letter in its Record.
[30]
With respect to the demeanour of the applicant, this is normally a
matter that is within the exclusive purview of the Board as trier of fact. The
panel has the opportunity to observe the demeanour of the witness, an element
which cannot easily be gleaned from a reading of the transcript.
[31]
However, the inferences drawn by the Board from the demeanour of the
applicant were not reasonable. The Board stated, at page 5 of its decision:
In assessing credibility, the panel also noted the
claimant’s demeanour while she was testifying. At no time during the hearing
did she express the sort of emotions that would have reasonably been expected
had she related events that actually happened to her. Instead, she seemed to
have a rather remote and indifferent manner while she was testifying about
traumatic events, as if she was reciting a memorized script.
[32]
The Board, in its reasons, focussed on the applicant’s lack of emotion.
No other behavioural traits usually associated with a claimant’s demeanour,
such as evasiveness, confusion or hesitancy were discussed. As noted in Shaker
v. Canada (Minister of Citizenship and Immigration) (30 June 1999),
File No. IMM-3448-98, Reed J. (F.C.T.D.), the emotion shown by individuals describing
an event will vary. It is not obvious what emotions a person would be expected
to show, particularly when describing an event that happened long before the
hearing, or what characteristics of that individual would give rise to an
expectation that the claimant before the Board would show a given emotion.
[33]
If the Board wanted to draw on adverse inference from this lack of
emotion, it ought to have explained what aspects of the applicant’s personality
and background led to its expectations as to her emotions. I am of the view
that the Board’s sense of her lack of emotion must be questioned, particularly
given the time that elapsed between the hearing and the decision. I therefore
conclude that the credibility findings of the Board based on the demeanour of
the applicant are unreasonable and constitute an erroneous finding of fact.
[34]
One last element with respect to the credibility of the applicant that
should be addressed is her failure to claim refugee status at the earliest
opportunity. Normally, such a delay is associated with a lack of subjective
fear. However, it should be remembered that not all persons in need of refugee
protection are aware of the availability of the process and the circumstances
under which it can be used. In Williams v. Canada (Secretary of
State) (30 June 1995), File No. IMM-4244-94, Reed J. (F.C.T.D.), the
ignorance of an applicant regarding the availability of the refugee protection
system available to her was held to be a reasonable and credible explanation for
her delay in claiming refugee status.
[35]
The actions of the applicant must be considered in their entirety in
order to determine the effect of her delay in claiming refugee status on the
credibility of her subjective fear. She spent between two and three months in
the United States and did not claim refugee status until she arrived in Canada.
This is but one factor to be considered. I am of the view that, in the
circumstances of this case, this is not a determinative factor. Care must be taken
not to lose sight of the point that her behaviour was still consistent with
that of someone who wanted to leave a country where she was in danger.
State
protection
[36]
With regard to state protection, the documentary evidence provides
numerous instances in which it is lacking.
[37]
In its reasons, the Board did not refer to the documentary evidence on
the activities of armed groups. Without referring to such evidence, it concluded
that the applicant had failed to put forth clear and convincing proof of a lack
of state protection. The Board stated that the documentary evidence shows that
Medellin has a high crime rate. The applicant’s claim, however, was based on a
fear of political violence, not crime. The Board also mentioned that state
security forces are not operating, but the applicant never alleged that state
security forces were or were not operating in Colombia. These statements
illustrate the extent to which the Board has misunderstood the claim and
undertaken a faulty analysis.
[38]
The applicant testified that she was afraid to go to the police not only
out of fear that CAP had infiltrated police forces, but because any of the
armed groups forming the network of Bolivarian militia may have done so. The
Board erred in construing her testimony to refer only to CAP when she stated
that she feared the whole network of groups.
[39]
The Board did not refer to documentary evidence on country conditions
that supported the stated belief of the applicant that armed militias would
know if she went to the police. Specifically, with the group known as FARC
controlling up to forty per cent of the territory of Colombia, it is not
possible for the government to control and oversee all of the country.
[40]
The Board did not refer to documentary evidence on the armed conflict in
Colombia. This evidence includes, among other things, reports regarding forced
internal displacement and attacks on civilians by armed groups who accuse the
civilians of supporting rivals. These problems are particularly acute in
Antioquia, the Colombian department in which Medellin is located. Those who are
internally displaced continue to feel threatened wherever they go and cannot
feel safe anywhere in Colombia. The documentary evidence on these points
includes material prepared by Human Rights Watch and the United Nations High
Commissioner for Refugees.
[41]
The failure of the Board to address the evidence on country conditions
that is most relevant to the absence of state protection is demonstrated by the
fact that it referred to the high crime rate in Medellin, but not to the
documentary evidence about the effects of armed political conflict. The Board’s
finding that the applicant failed to provide clear and convincing evidence of a
lack of state protection was made without regard to the evidence before it.
[42]
In Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689,
the Supreme Court of Canada referred to the UNHCR Handbook on Criteria and
Procedures for Determining Refugee Status (Geneva, 1992) (the “Handbook”),
prepared by the United Nations High Commissioner for Refugees. The Handbook
states that state protection is lacking where a claimant is unable or, for fear
of persecution, unwilling to approach the state for protection. The Court held
that a claimant must provide clear and convincing evidence of the inability of
the state to provide protection in order to be recognized as a Convention
refugee on this basis.
[43]
Given the understanding by the applicant of the risks associated with
seeking the assistance of the police or other authorities, as alluded to above
and as supported by the documentary evidence, the applicant had a valid fear of
persecution which rendered her unwilling to approach the state for protection.
The documentary evidence regarding internal displacement and the ties of
paramilitary groups to state security forces is clear and convincing evidence
of a lack of state protection and ought to have been seen as such by the Board.
I therefore conclude that the Board erred in concluding that state protection
was available to the applicant.
[44]
On the basis of the above analysis, I allow the application for judicial
review and order that the Board’s decision be set aside and referred back for
rehearing before a differently constituted panel.
[45]
The parties have had the opportunity to raise a serious question of
general importance as contemplated by section 74(d) of the Immigration
and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I
do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is
granted;
2. The April 4, 2002 decision of the
Convention Refugee Determination Division of the Immigration and Refugee Board
is quashed and the matter is referred back for rehearing before a differently
constituted panel.
3. There is no serious question of general importance
to be certified.
“Edmond P. Blanchard”
Judge
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1830-02
STYLE OF CAUSE: CDE v. MCI
PLACE OF HEARING: Vancouver,
B.C.
DATE OF HEARING: January
30, 2003
REASONS FOR ORDER AND ORDER: BLANCHARD
J.
DATED: March
31, 2003
APPEARANCES:
Ms. Brenda J. Wemp FOR
APPLICANT
Mr. Peter Bell FOR
RESPONDENT
SOLICITORS OF RECORD:
Ms. Brenda J. Wemp FOR
APPLICANT
1628 West 7th Avenue
Vancouver BC V6J 1S5
Morris Rosenberg FOR
RESPONDENT
Deputy Attorney General of Canada
Department of Justice
#900 - 840 Howe Street
Vancouver, Bc V6Z 2S9
Email this Content