Date: 20030515
Docket: IMM-289-02
Neutral citation: 2003 FCT 597
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MARIA CLARA PRADO MANRIQUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated December 10, 2001, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant requests that the application for judicial review be allowed, that the Board's decision be set aside, and that the applicant's claim to Convention refugee status be remitted to the Board for redetermination by a differently constituted panel, with such directions as this Court sees fit.
Background
[3] The applicant is a citizen of Colombia. She lived in Santiago de Cali and worked six days a week in Ginebra, Valle, which is 40 minutes away.
[4] The applicant had a six-year relationship with Jorge Alberto Lopez. Jorge and his cousin, Ricardo Echeverry, who was also his business partner, were in the business of importing parts, for vehicles.
[5] On September 10, 1999, Jorge went missing. The applicant alleges that he was abducted by the Revolutionary Armed Forces of Colombia ("FARC") guerillas. The applicant alleges fear of persecution from FARC because they want her to pay the $150,000 US ransom for the release of Jorge.
[6] On October 24, 1999, the applicant decided to visit her aunt in Ginebra. On the way to her aunt's place, a truck intercepted her and seven men in camouflage uniforms (attire which is often used by the FARC) emerged from the truck. They insulted her, demanded that she get the money for Jorge's release and hit her. One of the men raped her. When she eventually made it home to Cali, her mother took her to a doctor's clinic where she stayed for two days. After her release, the applicant decided to leave Colombia.
[7] On December 2, 1999, the applicant arrived in Miami. On July 18, 2000, after the expiry of her United States visa, she came to Canada and made a refugee claim at the border.
[8] The applicant claims that even after her departure from Columbia, threatening phone calls continue to be made at her home. Occurring as late as April 2001, these are allegedly from FARC demanding money for Jorge's release.
Reasons of the Immigration and Refugee Board (Refugee Division)
[9] A hearing was held by one Board member on August 28, 2001 and October 26, 2001. By reasons dated December 10, 2001, the Board determined the applicant not to be a Convention refugee.
[10] The Board found there was no credible evidence to make a determination that the applicant faces a serious possibility of persecution for a Convention reason should she return to Colombia. In assessing the credibility of the evidence, the Board considered the totality of the evidence and the experiences of similarly situated persons.
[11] The Board found that the applicant's evidence "does not meet the real test of the truth of the story of a witness that it be 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".
[12] The Board found Ricardo Echeverry to be a similarly situated person. Other than receiving notes and phone calls from FARC, he has not been harmed or pressured like the applicant to pay Jorge's ransom. The Board did not accept the applicant's explanation that perhaps this is because Ricardo is attempting to get the money from their company. The Board drew a negative inference from the absence of any harm directed against Ricardo and found this detracted from the credibility of the applicant's evidence.
[13] The Board also found it implausible and drew a negative inference from the fact that none of Jorge's immediate relatives had been harmed or subjected to undue pressure from FARC.
[14] The Board did not find plausible the applicant's allegation that she saw Jorge as frequently as three times a week, particularly during their last year together when she was living 40 minutes away and working long hours. The Board found it implausible that FARC would inflict undue harm and pressure upon the applicant for the sake of Jorge's release.
[15] The Board found the applicant's demeanor at the hearing supported the finding of an absence of a strong relationship as she did not show any emotion regarding Jorge's abduction until this was pointed out to her at the second sitting. The Board stated that she had no picture of Jorge in Canada, and that when the applicant left Colombia, her relationship with Jorge had effectively broken up.
[16] The Board found it implausible that after almost one and a half years of absence in Colombia, FARC would still be calling the applicant's family, threatening them and continuing to demand money for Jorge's release.
[17] The Board found that although the applicant provided medical evidence corroborating her rape, this was not persuasive with respect to who raped her and why she was raped. The Board found a letter from the applicant's mother to be self-serving and not persuasive.
[18] The Board was not satisfied that the applicant exerted due diligence in obtaining the ransom letters and notes sent by FARC to Ricardo. The Board found she could have easily obtained these documents from Ricardo and drew a negative inference from her inability to provide corroborating evidence.
[19] The Board further received inconsistent evidence relating to Jorge's alleged business. The Board did not accept the applicant's explanation as to why Jorge's company was not listed and drew a negative inference from the inconsistency.
[20] At the hearing, counsel provided evidence with respect to the kidnapping of the applicant's brother-in-law in 1995 and its possible link to the applicant's current fears. Apparently, the applicant was accused of keeping part of the ransom money and because of this incident claimed that FARC knows her. The Board did not find this persuasive. The applicant's brother-in-law was released. The Board found this incident to be nothing more than a "red herring" as there is no evidence of any harm from FARC being inflicted on the applicant between 1995 (when her brother-in-law was kidnapped) and 1999 (when Jorge was kidnapped).
[21] This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee.
Applicant's Submissions
[22] The applicant submits that all of the Board's adverse credibility findings are perverse and not open to it, based on the evidence before it. It is submitted that there is no reasonable basis upon which to reject the applicant's testimony.
[23] The applicant submits the evidence does not support the Board's finding that Ricardo is similarly situated to the applicant and therefore should have been harmed as the applicant was. It is submitted that the applicant last communicated with Ricardo in February 2000 and has no knowledge of his circumstances since then. Until that time, it is submitted that Ricardo received threats and was being subjected to undue pressure from FARC.
[24] The applicant submits she was attacked and raped, and is still being sought by FARC because she is a woman in a spousal-type relationship with Jorge and would care about his fate. The applicant submits her explanation that Ricardo has not been harmed because he is FARC's connection to eventually obtaining Jorge's ransom is more plausible than the explanation of the Board.
[25] The applicant submits it is perverse for the Board to expect that Jorge's immediate relatives would be harmed as the applicant was. It is submitted that the applicant testified that she did not know if Jorge's mother had been harmed, not that she had not been harmed.
[26] The applicant submits that given the evidence, there is nothing implausible about the frequency with which she and Jorge met. It is submitted that the Board displayed an insensitivity to Colombian cultural norms of propriety when it noted the applicant did not stay overnight at Jorge's home.
[27] The applicant submits the Board ignored uncontradicted testimony when it concluded that it was "implausible that the FARC would inflict undue harm and pressure upon the claimant for the sake of Jorge's release".
[28] The applicant submits that the Board's rejection of medical evidence was perverse and unreasonable as rarely is there evidence of who raped the victim and why she was raped. It is submitted that the applicant met the onus of establishing who raped her and why she was raped through her uncontradicted testimony.
[29] The applicant submits it is perverse for the Board to dismiss the letter from the applicant's mother as "self-serving" for no stated reason as it is required to give reasons for adverse credibility findings in clear and unmistakable terms.
[30] The applicant submits the Board's finding in regard to her demeanour at the hearing is wrong. It is submitted that at the first sitting she held back her grief when examined on the abduction of Jorge and then later broke down and was in tears when she testified about being raped and being ordered to obtain money for Jorge's release. It is submitted that at the second hearing, the applicant also showed emotion and was crying. It is submitted that regardless of the applicant's current feelings for Jorge, the applicant's evidence was that FARC would still perceive the applicant to have emotional feelings for Jorge.
[31] The applicant submits the Board was wrong in finding that she did not have a picture of Jorge in Canada. It is submitted that the Board told counsel it would not be necessary to submit the photograph, indicating it believed the applicant had the photograph of Jorge as she described with her in Canada. It is submitted that the Board acknowledged that there was "Jorge in her life", yet much of its decision was premised on its finding that the applicant's relationship with Jorge was not as strong as she indicated. It is submitted that the Board breached the rules of natural justice when it accepted the romantic relationship between the applicant and Jorge, yet based its decision rejecting the applicant's claim on this very point.
[32] The applicant submits the Board erred in finding the relationship between the applicant and Jorge was not sufficiently strong so as to provoke FARC into targeting the applicant. It is submitted the evidence does not support the Board's conclusion that the applicant and Jorge had broken up when she left Colombia.
[33] The applicant submits the Board erred in focussing on the applicant's subjective feelings and relationship with Jorge, rather than on FARC's perception of the applicant's relationship with Jorge.
[34] The applicant submits the Board's finding that the applicant did not exercise due diligence in obtaining the ransom notes sent by FARC to Ricardo is perverse. It is submitted there is no reason for the Board not to believe that Ricardo received threats from FARC in the form of notes. It is submitted that the applicant's sworn testimony does not have to be corroborated to be believed and that regardless, the applicant provided a reasonable explanation for her inability to obtain the notes.
[35] The applicant submits that the Response to Information Request ("RIR") is not determinative of whether Jorge's company existed up to his kidnapping or up to the applicant's departure and that the Board was not entitled to draw a negative inference from the supposed inconsistency between the RIR and the applicant's testimony.
[36] The applicant submits the threatening notes received by her in 1995 demonstrate that she was already known to FARC at the time of Jorge's kidnapping and the likelihood of her being targeted by FARC in connection with Jorge's kidnapping increased.
Respondent's Submissions
[37] The respondent submits the Board did not commit a reviewable error in finding the applicant not to be a Convention refugee.
[38] The respondent submits that the standard of review in this particular case is whether the Board acted in a patently unreasonable manner.
[39] The respondent submits that the Board did not commit a reviewable error in finding the applicant not credible. It is submitted that the Board's analysis as a whole was not so unreasonable as to warrant the Court's intervention. The respondent submits that the implausibility findings made by the Board are not unreasonable in the context of the evidence that although Jorge's cousin was pressured with respect to ransom, neither Jorge's cousin nor mother were harmed. It is submitted that it was open to the Board to find that the applicant did not meet her onus with respect to establishing with credible trustworthy evidence that the rape she described had occurred because of her relationship with Jorge.
[40] The respondent submits it was open to the Board to conclude that the applicant exaggerated the closeness of her relationship to Jorge given her non-explanation for the lack of emotion and her contradictory testimony about her feelings.
[41] The respondent submits that accepting Jorge had been kidnapped did not preclude the Board from finding the applicant's testimony implausible. It is submitted that even accepting a relationship between the applicant and Jorge, it was open to the Board to conclude that this relationship would not explain why she would be persecuted in the absence of evidence of persecution of other family members.
[42] The respondent submits that the Board's finding that the applicant did not face a serious possibility of persecution for a Convention reason was open to it given that none of Jorge's close relatives were harmed or subjected to undue pressure by FARC.
[43] The respondent submits that even if it is found that there was a breach of natural justice in this case by refusing to allow the applicant to produce a picture of the victim and then by drawing an adverse inference from the fact there was no picture, such a breach would be immaterial. It is submitted that there is sufficient other evidence to support the findings of the Board with respect to the relationship between the applicant and Jorge that would allow it to conclude that she does not have a well-founded fear of persecution for a Convention reason. It is submitted that it would be pointless to return the case for redetermination.
[44] The respondent submits that even if the Board made some errors with respect to the evidence about the applicant's relationship with Jorge, they are also immaterial.
[45] Given that the Board found many reasons why it did not find the applicant credible, the respondent submits that no one single factor was determinative. The respondent submits that it was the totality of the evidence that led to the finding that the applicant was not a credible witness. It is submitted this finding is not so unreasonable as to invite the intervention of the Court. After reading the reasons of the Board as a whole, it is submitted that the Board understood the facts of the applicant's claim and found the evidence in support of it insufficient to warrant a positive determination.
Issue
[46] Are the Board's adverse credibility findings perverse and capricious, or made without regard to the evidence?
Relevant Statutory Provision
[47] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, reads in part as follows:
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"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
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« réfugié au sens de la Convention » Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
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(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
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(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
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(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
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b) has not ceased to be a Convention refugee by virtue of subsection (2),
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b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
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but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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Analysis and Decision
[48] Issue
Are the Board's adverse credibility findings perverse and capricious, or made without regard to the evidence?
The Board made a number of credibility findings in its decision. In its decision at page 2,
the Board wrote:
. . . In assessing the credibility or trustworthiness of the evidence, I considered the totality of the evidence, . . .
[49] The Board stated at page 3 of its reasons:
. . . When asked of her, she replied that she has no picture of Jorge in Canada. I therefore reiterate my finding above that the claimant's relationship with Jorge is not as strong as she would like us to believe.
[50] I have reviewed the transcript of the second day of the hearing and I am of the opinion that the Board was in error in stating that the applicant did not have a picture of Jorge in Canada. The applicant testified that she did have a picture of Jorge in Canada and described the picture in detail (tribunal record pages 220 to 225).
[51] At page 4 of the decision, the Board stated:
The claimant provided a medical evidence that corroborates her rape. However, this evidence is not persuasive with respect to who raped her and why she was raped. . . .
[52] The applicant submits that this was a perverse finding because rarely is the identity of the person who committed the rape known, nor the reason for the rape. I agree with the applicant that to find the evidence not persuasive for this reason is perverse.
[53] The Board in its decision found that it had received inconsistent evidence concerning Jorge's business. At pages 4 to 5 of its decision, the Board stated:
. . . In an Information Request obtained by the RCO, the document stated that there is no reference to an import/export company in Cali where the name "Lopez Echeverry" (the name the claimant gave me) could be found from the staff of the Cali chamber of Commerce, nor in the white or yellow pages of the telephone directory for the city of Cali. When this document was put forward to the claimant for an explanation, her replies were that she does not know why Jorge's company is not listed, she knows it existed, and that her mother had told her that the company was closed. I do not accept any of the claimant's explanations. The company existed as late as 1999 (when she left Colombia) and the search went as early as 1992. I draw a negative inference on this inconsistency and find this to detract from the credibility of the claimant's evidence.
[54] In the RIR, found at page 139 of the tribunal record, it is stated:
Staff at the Cali Chamber of Commerce indicated during a 10 October 2001 telephone interview, after searching its registry of businesses, that its records go back earlier than 1992 and show no company with the name "Lopez Echeverry". However, the staff interviewed indicated that the Chamber of Commerce does not necessarily include in its registry every existing business in the city for a given field of commerce [emphasis added].
And, the RIR states further:
Staff at the Embassy of Colombia in Ottawa were unable to find a listing for an import and/or export company with the given name in the current White and Yellow Pages directories for the city of Cali (10 Oct. 2001).
[55] The applicant indicated that the company "Lopez Echeverry" was in existence in 1999, but as the Board stated, there was no listing of the company in the 2001 white and yellow pages. This is not necessarily inconsistent as the company would not be listed in 2001 if it had closed earlier as indicated to the applicant by her mother. Also, the Board found there to be an inconsistency because the company could not be found in the Chamber of Commerce registry. However, the evidence states that not all companies are listed by the Chamber of Commerce and, as such, an inconsistency may not necessarily exist. I am of the view that the Board erred in this respect.
[56] I am of the opinion that since the Board considered the totality of the evidence in making its credibility finding, then its incorrect conclusions as noted above played some part in its credibility conclusions. I do not know how much these incorrect conclusions influenced the Board's credibility finding. I do not agree that these findings would not be material to the outcome of the case. The Board's decision must be set aside and the matter returned to a different panel of the Board for a new hearing.
[57] Neither party wished to propose a serious question of general importance for my consideration for certification.
ORDER
[58] IT IS ORDERED that the Board's decision is set aside and the matter is remitted to a different panel of the Board for a new hearing.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-289-02
STYLE OF CAUSE: MARIA CLARA PRADO MANRIQUE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, January 8, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, May 15, 2003
APPEARANCES:
Mr. Neil Cohen
FOR APPLICANT
Ms. Rhonda Marquis
FOR RESPONDENT
SOLICITORS OF RECORD:
Neil Cohen
2 College Street
Suite 115
Toronto, Ontario
M5G 1K3
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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