Date: 20101216
Docket: IMM-624-10
Citation: 2010 FC 1292
Ottawa, Ontario, December 16, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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ANA MARIA ANGEL GONZALEZ
OLGA MARGARITA GONZALEZ JARAMILLO
HECTOR ALFONSO ANGEL GONZALEZ
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), of a negative
decision by the Immigration and Refugee Board (the “IRB”) dated December 23,
2009. The IRB refused the refugee claim and found that the applicants were not
Convention refugees or “persons in need of protection” as defined in sections
96 and 97 of IRPA. Leave for judicial review was granted by Justice Heneghan on
September 9, 2010.
[2]
In
its decision, the IRB refused the applicants’ claim as they were not found to
be Convention refugees or persons in need of protection, based on a lack of
credibility and plausibility of their story. Alternatively, they were found to
have an Internal Flight Alternative (“IFA”) in Colombia. The claims
were not found to have sufficient nexus to a Convention ground.
The Facts
[3]
The
applicants’ claim rests on the alleged persecution suffered at the hands of the
Revolutionary Armed Forces of Colombia (“FARC”), a paramilitary organization.
They are members of the same family: Ana Maria and Hector Alfonso are siblings
and Olga Margarita is their mother. They also have a brother, Carlos Alberto,
whose refugee claim in Canada was accepted in September of 2005. His
refugee claim was based on persecution by the same paramilitary organization.
[4]
Since
Carlos Alberto’s departure, the principal applicant, Ana Maria, was tasked with
managing the family’s three (3) farms, situated a few hours from their city of
residence, Medellin. From August
2007 on, the principal applicant alleges having received several threatening
phone calls from people claiming to be from the FARC. Threats were allegedly
uttered, as the principal applicant refused to pay the FARC’s extortion tax.
These calls continued until the winter of 2008, when the principal applicant
and her mother left for the United States on valid visas and made their way to
Canada, after two weeks in that country. The brother, Hector Alfonso, allegedly
received phone calls after their departure, asking the whereabouts of the
principal applicant and reiterating the demands for the payment. The brother
then fled, spending a week in the United States, before making his way
to Canada.
The IRB’s Decision
[5]
Having
analyzed the evidence and tested it during the hearing, the IRB was of the
opinion that the applicants were not, on the balance of probabilities, targets
of the FARC. Alternatively, they were found to have an Internal Flight
Alternative (“IFA”) in the capital of Bogota.
[6]
More
particularly, the applicants’ story was not deemed credible for the following
reasons:
- The
fact that the three (3) farms the family owned continued to operate under the
management of their long-time employee, is not seen to be credible as the IRB
found it surprising that it kept functioning without FARC interference or
problem;
- The
IRB found that in light of the refusal to pay, the FARC could reasonably be
expected to extract the money from the farm manager, take the produce and
livestock and sell them or take the title to the farm and sell it. The fact
that FARC did not, makes the IRB hesitant to believe the applicants’ story;
- The
fact that there was no personal confrontation or attack was deemed surprising,
as the “passive style of getting their target to comply with their demand seems
to be uncharacteristic of the FARC, who are well known to take swift and
violent reprisal on those who did not comply”;
- Despite
the threats, the principal applicant still traveled by plane and car to go to
the farm, and even stayed there two (2) days, without interference or contact
with the FARC. The IRB found it “strange” that she would “venture, as it were,
into the lion’s mouth” without confrontation from the FARC.
[7]
The
IRB found that, on the balance of probabilities, the applicants were not
targets of the FARC. Furthermore, the IRB made a negative credibility finding
from the fact that the applicants had not applied for refugee protection while
in the United
States.
Also, the IRB found that the applicants had an IFA in Bogota, and that
the FARC’s current capacities were not such that they could track the
applicants in the capital. The IRB also concluded that there was sufficient
state protection in Colombia, and that the applicants had not shown that the
efforts to avail themselves of that protection would be sufficient.
Position of the Parties
[8]
The
applicants argue that the IRB erred in its appreciation of the evidence. It is
argued that the IRB made several unreasonable findings, such as the fact that
the FARC could sell the farms and the cattle and the detrimental conclusion to
the applicants’ transit through the United States. The applicants submit
that the IRB ignored evidence before it, such as the security measures taken by
the applicants in order to avoid the FARC. The IRB failed to recognize the
presumption of truth of refugee claims and ignored the documentary evidence before
it.
[9]
The
Respondent argues that, in light of the reasonableness standard of review, the
IRB’s decision falls within the range of reasonableness. It is argued that the
IRB sufficiently motivated its decision and took into consideration the
evidence before it. Also, the respondent alleges that it was justified for the
IRB to make an adverse credibility finding based on the applicants’ failure to
make in the first safe haven they found, while recognizing that this cannot be
the sole factor on which the IRB bases its decision. The respondent submits
that the Court must not reweigh the evidence and substitute its own conclusions
if the IRB’s decision falls within the acceptable outcomes justifiable in fact
and in law.
The Applicable Standard
of Review
[10]
The
IRB’s determination of the validity of a claim for protection made pursuant to
sections 96 and 97 of IRPA is a mixed question of fact and law, and thus
attracts review on a reasonableness standard (Gutierrez v. Canada
(Citizenship and Immigration), 2009 FC 487; Gonzalez v. Canada
(Citizenship and Immigration), 2009 FC 163). As such, the Court must not
substitute its own judgment to that of the IRB. So long as the decision falls
within the realm of reasonable and justifiable outcomes, the Court may not intervene
(Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9).
[11]
It
is not the Court’s role, in reviewing the IRB’s findings, to reweigh the
evidence that was before the IRB. Rather, the Court must review the decision in
keeping with the principles of judicial review (Sanchez v. Canada (Citizenship
and Immigration), 2008 FC 971).
Analysis
[12]
While
the IRB is not required to refer to each and every piece of evidence before it,
there is a presumption that it weighed and considered all the evidence (Hassan
v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946
(F.C.A.); Sanchez v. Canada (Citizenship and Immigration), 2008 FC 134; Suvorova
v. Canada (Citizenship and Immigration), 2009 FC 373). When the IRB draws
inferences and conclusions that on the record are reasonable, the Court should
not interfere, whether or not it agrees with the inferences drawn: Aguebor v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 732 (F.C.A.); Chen v. Canada (Citizenship and Immigration),
[1999] F.C.J. No. 551 (F.C.A.). However, as it will be seen below, the IRB’s
decision, on the whole, is unreasonable and does not fall within the range of
acceptable outcomes. On several grounds, the IRB’s decision failed to relate
evidence before it, and made unreasonable conclusions.
Passage through the United
States
[13]
In
its decision, the IRB made a negative inference from the fact that the
applicants had transited through the United States and had stayed there
for a certain amount of time. The IRB concluded that “the panel finds this
troubling in that, if they were truly in fear of being returned to Colombia, they would
have taken steps and actions that reflect the urgency of their situation, that
is, to apply for refugee protection at the first opportunity in a safe country”.
While it holds true that a certain inference can be made from not claiming
refugee status in the first country, this cannot be the sole factor on which
the IRB bases its decision (Hue v. Canada (Minster of Employment and
Immigration), [1998] F.C.J. No. 283 (F.C.A.)). The IRB must assess why
there was delay in the application and why asylum was not sought at the first
occasion (Mendez v. Canada (Minister of Citizenship and Immigration),
2005 FC 75; Mesidor c. Canada (Citoyenneté et
Immigration), 2009 CF 1245; Gavryushenko v. Canada (Minister of
Citizenship and Immigration), [2000] 194 F.T.R. 16).
[14]
In
this case, an explanation was given by the applicants: they did not seek refuge
in the United States because their brother/son had filed a successful claim in Canada based on
similar underlying facts. The IRB did not address this in its reasons and made
an adverse finding, despite the evidence before it. While not determinative in
itself, this element is indicative of the unreasonableness of the IRB’s decision.
The FARC’s Responses and
Behaviour
[15]
The
IRB was of the opinion that the applicants’ allegations of the FARC’s threats
and behaviour were incompatible with its reputation of violent reprisal.
Furthermore, the IRB did not find credible that the FARC would simply give a
pamphlet to the farm manager. The IRB stated that “it would have been
reasonable to believe that the FARC would extract the money they demanded
directly from the farm manager, take the farm produce and livestock and even
take title to the farm and sell these themselves”.
[16]
As
the applicants noted in their pleadings, such a conclusion is unwarranted and
unreasonable. It goes beyond a plausible inference of fact and delves into
speculation that is not materially supported. That the FARC are usually violent
is not contested; however, this does not imply that the FARC would sell the
farm’s livestock, or even the farm itself, which is an unreasonable inference
of fact. Surely, the Court cannot find such a conclusion to be “within the
realm of justifiable outcomes”, as per Dunsmuir, supra.
[17]
This
is further compounded by the fact that the IRB ignored the applicants’ attempt
to modify their routes and behaviour in order to avoid the FARC. The IRB
concluded that the FARC typically has violent methods, which is not contested.
However, the IRB could not reasonably conclude that if the FARC did not
physically confront the applicants without duly considering the evidence, that
the applicants had taken precautionary security measures in order to protect
themselves from the FARC. Again, this element is not determinative, but is
indicative of the unreasonableness of the IRB’s findings.
The IFA finding
[18]
The
IFA finding makes up a sizeable portion of the IRB’s decision. It addresses a
good portion of the documentary evidence and attempts to evaluate the FARC’s
current capacities in the capital of Bogota. However, in its
reasoning on the IFA issue, the IRB drew unreasonable conclusions from the
documentary evidence.
[19]
One
example of this is the finding in regards to the United Nations High Commission
for Refugees’ (UNHCR) report. The IRB concludes that this report “no longer
supports” and is “silent” on the FARC’s capacity to track down citizens in the
capital or in large cities. The IRB took this as a finding that the FARC had
limited operational capacities in the cities. In fact, as the applicants noted,
the more recent version of the UNHCR report does not have the same specific
paragraph, but contains certain relevant elements. The Court’s role in this instance
is not to determine whether the FARC can track down people in large cities.
Rather, the Court can state that the documentary evidence was not reasonably
considered, as was the case here.
[20]
The
IRB’s decision also omitted an important element of fact in its IFA
determination. It made no mention of the fact that the source of the
applicants’ woes was farms on which they did not reside and were situated
several hours away. The applicants lived in the large city of Medellin, and were
allegedly tracked down by the FARC, even though they had moved within this city
after the first threats were received. It is unreasonable for the IRB not to
have considered the applicants’ move within the city and the fact that the
alleged persecution was not directly linked to their place of residence.
Adequacy of State
Protection
[21]
While
the IRB’s decision does attest to a serious analysis of Colombia’s capacity
to protect its citizens from the FARC, especially in major cities, the decision
does not relate how this protection relates to the applicants. The IRB failed
to address in its decision the principal applicant’s previous dealings with
police forces. Also, it failed to consider the police’s response to the
brother’s complaints about the alleged threats. Without addressing the
sufficiency of such elements in regards to an IFA finding, the Court finds it
unreasonable for the IRB to ignore this evidence.
Conclusion
[22]
In
light of the discussed elements of the IRB’s decision, it appears that the
IRB’s determination of the applicants’ refugee claims was made in an
unreasonable fashion, without due consideration of the evidence before it and
drawing unreasonable conclusions from the evidence it did consider. The
application for judicial review of the IRB’s decision, dated December 23, 2009,
is granted and sent for redetermination in front of a newly constituted panel.
[23]
No
question of general importance for certification was proposed by the parties.
JUDGMENT
THIS COURT’S
JUDGMENT is:
- the judicial
review application is granted and the matter is to be sent for determination by
a newly constituted panel of the Immigration and Refugee Board. No question is
certified.
“Simon Noël”
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