Date: 20050513
Docket: IMM-1904-04
Citation: 2005 FC 692
Ottawa, Ontario, the 13th day of May 2005
Present: Mr. Justice Rouleau
BETWEEN:
ANGELICA MARIA GIRALDO ROMERO
CAMILO ANDRES ARCILA GIRALDO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated January 20, 2004, by the Refugee Protection Division (panel) that neither Angelica Maria Giraldo Romero (the applicant) or her child Camilo Andres Aricia Giraldo are Convention refugees or persons in need of protection under sections 96 or 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[2] The applicant and her child were born in Colombia and are citizens of that country. The applicant studied biology from 1996 to 1999 at the Del Valle university in Cali and then worked for the "Drogas Mas Vida" pharmacy until October 1999.
[3] The applicant claims that on October 15, 1999, when leaving her work, two men from the Revolutionary Armed Forces of Colombia (RAFC) approached her and, threatening to kill her, demanded her collaboration in procuring pharmaceutical products and drugs for them from her employer.
[4] Not knowing what to do, the applicant spoke to her superior at the pharmacy, who advised her to quit her job and leave her home for a while.
[5] On November 23, 1999, therefore, the applicant left for the United States with her son and remained there until her visa expired in May 2000. Shortly after her return to Colombia, she received new threats and returned to the United States with her son on September 10, 2000, for one month.
[6] On December 31, 2000, at the insistence of her mother and fearing for her life, the applicant left Colombia for the United States a third time, but without her child. She married Alvin Figueroa on May 4, 2001, and then left him one month later and divorced on March 26, 2002.
[7] By November 2001, the applicant had saved enough money to have her son join her in the United States. She remained there until the end of September 2002, when she left for Canada and claimed asylum at the border.
[8] The panel did not doubt the identity of the applicant and her child, but concluded that the applicant was not credible and had not established that there really was a subjective fear.
[9] The panel stated, first, that the name of the pharmacy's owner, Mr. Nestor Jaime Giraldo Aristesaval, did not appear in her account and that the applicant had not provided any explanation for this omission. The panel thought it was a significant omission.
[10] Second, the panel was surprised at how little contact the applicant had with her boss, whom she had also characterized as a friend. The applicant alleges that she spoke to Mr. Giraldo for the first time on November 23, 1999, and a second time in February 2003. This is surprising since she had returned to Colombia twice between November 1999 and December 2000. The panel states that the threats made against Mr. Giraldo are closely linked to those made to the applicant and her family. The fact that this information does not appear in her account is a significant omission that again casts serious doubts on the truthfulness of her allegations about the RAFC's threats.
[11] Third, the panel does not think there is a genuine subjective fear, since the applicant made three trips to the United States without claiming refugee status there. Furthermore, the applicant returned several times to Colombia, which she would not have done if she really feared for her life. And if she really feared for her life and the life of her child, why did she leave him in Colombia during her third visit to the United States? The panel could not find otherwise since the applicant's conduct did not reflect her alleged fear of persecution.
[12] The applicant contends, first, that if she were to return to her country, the RAFC members would try to kill her and her son.
[13] Although the panel states that the name of Nestor Jaime Giraldo Aristesaval is not mentioned in the applicant's forms, she says she stated in her Personal Information Form (PIF) at question 41 that her employer was Drogas Mas Vida and that she had spoken with her "immediate superior".
[14] The applicant further argues that she did not have a lot of contact with Mr. Giraldo for security reasons, knowing the RAFC's interest in regard to him.
[15] With respect to her numerous trips to the United States without claiming asylum, she alleges that she did not want to live in the United States but that she wanted to return to her country to resolve her problems.
[16] In relation to the fact that she had not taken her son with her to the United States on her third trip, she alleges that the RAFC did not mention her son and did not know that she had a child.
[17] Finally, regarding the delay in claiming refugee status, she says she had found a solution to her problem, marrying an American. But when she learned that her new husband wanted a divorce, it was too late to make a refugee claim.
[18] The issue in this case is whether the panel committed a patently unreasonable error in its analysis of the facts.
[19] It has been held many times that a refugee's return to the country of origin is a factor that must be considered in establishing whether there is a genuine subjective fear (Diabo v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2168; Gavryushenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1209; Ilie v. Canada (Minister of Citizenship and Immigration.), [1994] F.C.J. No. 1758). In Nasreen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1376, Cullen J. stated at paragraph 30:
The panel's conclusion that the applicant's return to Pakistan undermined the well-foundedness of her fear is also reasonable and supported by the jurisprudence: Huerta v. Canada (MEI) (1993), 157 N.R. 225 (F.C.A.) and Bogus v. Canada (MCI) (1993), 71 F.T.R. 260 (F.C.T.D.).
[20] The applicant left Colombia for the United States three times without making any claim for asylum and voluntarily returned more than once to her country. Furthermore, the United States is a signatory of the Convention and the failure to apply for protection in a signatory country may also be taken into consideration (Ilie v. Canada (Minister of Citizenship and Immigration.), [1994] F.C.J. No. 1758; Ali v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 558; Skretyuk v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 783; Handzo v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1125).
[21] The applicant alleges that she did not seek protection in the United States because she did not want to live there but instead wanted to return to Colombia to resolve her problems. However, as the panel states, although she had received death threats as early as the first encounter with the RAFC, she nevertheless returned to Colombia, and this makes her conduct inconsistent with that of a person fearing for her life and security.
[22] Moreover, the panel thought it was improbable that the applicant would decide to leave Colombia definitively in December 2000 and choose not to take her son with her. If she really had a reasonable fear of persecution for herself and her son, she would not have left him but would certainly have taken him with her as she had for her first two trips.
[23] Her allegations that the RAFC did not know she had a child are dubious, since there was constant surveillance of the applicant and her family, and because the RAFC knew, within a few days, when the applicant returned from her trips to the United States. Furthermore, during the hearing before the panel, she stated that she had a fear for herself and her child from the very first encounter with the RAFC:
[translation]
Q. And what are you afraid of?
A. I don't want them to kill me or kill my son.
Q. And if I understand clearly, you realized, you had that fear in early December 2000?
A. No, this began in '99, mid-October '99.
Q. So, already at that date, you were afraid that you would be killed, you and your son?
A. Yes.
(See transcript of hearing of January 20, 2004, at page 10)
[24] With respect to the fact that the applicant had contacted her friend and employer Nestor Jaime Giraldo Aristesaval only twice since October 1999, the panel found that this tainted her credibility since the threats that she and her employer were receiving were closely connected. The panel's decision on this point is not patently unreasonable since the person to whom the applicant turned for help was her employer. Moreover, she took her employer's advice in leaving her job and Colombia for a six-month period. It would seem logical to contact her employer to find out whether there had been any threats or encounters with the members of the RAFC. Since the panel raised this point with the applicant and was given answers that it did not find satisfactory, it was left entirely to its discretion and it was not unreasonable for it to find that the applicant's testimony on this point was not credible.
[25] The panel clearly concluded that the existence of certain implausibilities was confusing. However, the refusal by the chairperson to accept the filing of certain documents at the hearing is not relevant. There is no doubt that the panel's determinative findings in regard to certain omissions and contradictions established the rationality of its determination.
ORDER
The application for judicial review is dismissed.
"P. Rouleau"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1904-04
STYLE: ANGELICA MARIA GIRALDO ROMERO
CAMILO ANDRES ARCILA GIRALDO v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 4, 2005
REASONS: The Honourable Mr. Justice Rouleau
DATED: May 13, 2005
APPEARANCES:
Odette Desjardins FOR THE APPLICANTS
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE APPLICANTS
180 René-Lévesque Blvd. E.
Suite 207
Montréal, Quebec
Justice Canada FOR THE RESPONDENT
Guy-Favreau Complex
200 René-Lévesque Blvd. W.
East Tower, 5th Floor
Montréal, Quebec
H2Z 1X4
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