Date: 20101109
Docket: IMM-6029-09
Citation: 2010 FC 1119
Ottawa, Ontario, November 9, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JOSUE MANRIQUE CHAVARRO
FEBE CONTRERAS CHITIVA
KEVIN JOSUE MANRIQUE CONTRERAS
FEBE NATALIA MANRIQUE CONTRERAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated November 9, 2009, wherein the applicants were
determined not to be Convention refugees or persons in need of protection under
sections 96 and 97 of the Act. This conclusion was based on the Board’s finding
that the principal applicant lacked credibility and lacked a well-founded fear
of persecution in Colombia. The Board also found that the applicants had
an internal flight alternative (IFA) available to them within Colombia.
[2]
The
applicants request that the decision of the Board be quashed and the claim
remitted for reconsideration by a differently constituted panel of the Board.
Background
[3]
Febe
Contreras Chivata, (the principal applicant), her husband and her two children
(the other applicants) are citizens of Colombia. The
incidents giving rise to her claim for refugee protection took place some time
ago. The principal applicant alleges that due to her religious teaching
activities from 1999 to 2001, she became an enemy of the revolutionary forces
known as Fuerzas
Armadas Revolucionarias de Colombia (FARC) and that they threatened and
otherwise persecuted her and her family until they left Colombia. As part of
her religious teachings, the principal applicant told students to reject the
FARC.
[4]
The
principal applicant alleges that on October 29, 1999, while leaving a school in
Bogotá, a couple of men approached her identifying themselves as FARC members.
They told her to discontinue preaching Christianity to the youth in the area as
it was hurting their recruiting efforts. One of the men pressed a gun to her
side and said that if their orders were disobeyed, her family would be killed.
[5]
On
May 15, 2000, while at a different school, the principal applicant was
approached by the mother of a student who indicated that the guerrillas had
taken her son. She located the son and convinced him to abandon the guerrillas.
On July 25, 2000, FARC members located the principal applicant again and phoned
her saying that she had not followed their orders and that they would kill her
family. On November 20, 2000, neighbours told them that two men on motorcycles
had been wandering around the community looking for her. That same day, the
applicants left and stayed with the principal applicant’s sister-in-law before
renting a new guarded apartment in a different part of Bogotá.
[6]
In
2001, the applicant changed jobs and began working in a different school.
However, on March 12, 2001, she received another threatening phone call from a
FARC member who said he knew where she lived and threatened to kill her and her
family.
[7]
On
March 22, 2001, the applicants fled to the U.S. and claimed
asylum there. The applicants allege that the claim was never properly heard due
to filing errors.
[8]
On
August 6, 2008, the applicants and their U.S. born son
came to Canada and made a
refugee claim.
Board’s Decision
[9]
The
Board did not believe the principal applicant’s story nor did the Board believe
that the principal applicant had a subjective fear of persecution in Colombia. The Board
noted numerous inconsistencies and elements of the principal applicant’s story
which seemed implausible.
[10]
The
Board first noted that the principal applicant indicated that she feared for
her life from the first encounter with FARC in October 1999 and she ceased
speaking out against them at school. This was inconsistent with her account
that while at a new school in 2000, a student’s mother had come to her because
she knew the principal applicant was against the FARC. The Board found it
unlikely that the students at the old school would have informed students at
the new school and so informed the student’s mother. Conversely, if the
principal applicant had indicated her opposition to FARC at the new school, the
behaviour would have been inconsistent with her stated fear. In either case,
the principal applicant’s credibility was diminished.
[11]
With
regard to the student she convinced to leave the FARC, the Board was concerned
as to how the FARC would have known that she had been responsible. The Board
also felt that it was inconsistent for the principal applicant to testify that
she took the FARC’s threats seriously and obeyed their order but subsequently
testify that she was disobeying their order merely by continuing to teach at
the school. Continuing to teach at the school, if she understood this to be
disobeying their order, was also inconsistent with her stated fear. Considering
the FARC’s documented brutality, the Board also found it quite implausible that
she would have been given a warning at all and utterly implausible that the
FARC would have simply called again in July of 2000 to re-issue the same
threat.
[12]
Finally,
her evidence that she continued her work at that school until the end of the
year, despite an alleged death threat in September 2000, further impugned her
credibility. The death threat over the phone that she received while at the new
school in 2001 was the fourth such direct threat. Again, the Board found it
implausible that the FARC would be so lenient towards an alleged foe that,
according to her testimony, consistently ignored their instructions to stop
sabotaging their recruitment efforts.
[13]
In
addition, the Board found upon reviewing the documentary evidence that FARC’s
reach within Colombia had been severely restricted in recent years and that her
family could live in Santa Marta or Cartegena in the state
of Magdelena in the north, which had been free from FARC attacks and
kidnappings in all of 2008. This constituted an IFA in the Board’s view,
because it was not unreasonable to require the applicants to relocate there.
Issues
[14]
The
issues are as follows:
1. What is the appropriate
standard of review?
2. Did the Board make
erroneous findings on the issues of credibility and subjective fear?
3. Was the Board’s IFA
conclusion unreasonable?
Applicants’ Written
Submissions
[15]
The
applicants submit that the Board’s findings on the issues of credibility and
subjective fear are seriously impugned by erroneous findings of fact. They are
also made without adequately raising the Board’s concerns with the principal
applicant and without providing adequate reasons.
[16]
First,
the principal applicant’s testimony was entirely consistent with her stated
fear. The Board erred when it stated that the principal applicant had
consistently ignored the FARC’s instructions.
[17]
Secondly,
the Board erred by implying that the principal applicant’s testimony was
inherently implausible. Her testimony regarding how the student’s mother knew to
seek her out was that although she was at a new school where she had never
spoken out against FARC, students at that new school would likely have learned
from students at the old school about her views. There was no evidence that
countered this possibility and thus, it should have been accepted. The Board
also did not adequately explain how her actions regarding the threatening call
in July of 2000 were inconsistent with having a subjective fear. Moreover, no
concern regarding such an inconsistency was ever brought to the principal
applicant’s attention during the hearing. The applicants also submit that the
Board’s finding that FARC has a reputation for brutality is not based on the
evidence before it (see application record, pages 145 to 147).
[18]
Finally,
the Board erred in relation to its comments about the FARC’s known brutality
because the Board did not cite what document, if any, this information came
from. Indeed, the Board relied significantly on the fact that the FARC would
have been unlikely to give so many warnings.
[19]
The
Board erred in its analysis of an IFA because it failed to ask the principal
applicant specifically why moving to Santa Marta would be unreasonable and did
not consider some documentary evidence suggesting that there are new threats
other than the FARC in those areas. Further, the Board’s analysis of the
reasonableness of the alternative was solely focused on the occupations of the
applicants and their ability to find work.
Respondent’s Written Submissions
[20]
The
respondent rejects the applicants’ assertion that the Board was bound to accept
the truth of the principal applicant’s story unless contradicted by objective
evidence. There is a presumption of the truth of sworn testimony but that is
rebuttable and Board members are permitted to base credibility and plausibility
findings on common sense. The Board clearly put its concerns regarding
inconsistencies and implausibility before the principal applicant during
testimony so there was no issue of procedural fairness. The type of substantive
errors in the credibility and plausibility findings the applicants point to
invite the Court to engage in a microscopic analysis of the decision and is
improper. Furthermore, none of the alleged errors would be sufficient to require
the intervention of the Court when considering the reasonableness of the
decision as a whole. On a global reading, the decision regarding credibility
was supported and reasonable.
[21]
On
IFA, it was open for the Board to find that the applicants had not met the
burden before them of establishing, with evidence, the existence of conditions
which would jeopardize the life and safety of an applicant in travelling or
temporarily residing in the IFA. The applicants’ submissions simply ask the Court
to re-weigh the evidence and redetermine the reasonableness of the IFA.
Analysis and Decision
The Applicants’ Burden
[22]
The
applicants seek to have the Board’s ultimate conclusion quashed and the matter
remitted back for reconsideration. Because the Board’s decision was based and
can stand independently on both the credibility finding and the IFA finding,
the applicants must defeat both findings separately before the decision can be
quashed (see Carillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94, [2008] 4 F.C.R. 636 at paragraph 14).
[23]
Issue
1
What is the appropriate
standard of review?
It is well settled that Board
conclusions that are determinative of a refugee claim are determinations of
mixed fact and law and are reviewable against the standard of reasonableness (see
Kaleja v. Canada (Minister of Citizenship and Immigration), 2010 FC 252 at
paragraph 19, Sagharichi v. Canada (Minister of Employment and Immigration)
(1993), 182 N.R. 398 (F.C.A.), [1993] F.C.J. No. 796 at paragraph 3). As such,
the reviewing court will inquire into the qualities that make such a
determination reasonable and be concerned primarily with the existence of
justification, transparency and intelligibility within the decision making
process. The court will also be concerned with whether the decision falls within
a range of possible acceptable outcomes which are defensible in respect of the
facts and law (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[24]
Findings
of fact, including credibility findings, elemental to the Board’s conclusion on
a determinative issue may only be interfered with by a reviewing court if the
finding was made in a perverse or capricious manner or without regard for the
material before it (see Federal Courts Act, R.S.C. 1985, c. F-7s. 18.1(4)(d),
also see Diabo v. Canada (Minister of Citizenship and Immigration), 2004
FC 1772 at paragraph 3). This recognizes the specialized skill of the Board and
the fact that the Board is in a much better position than a reviewing court to
gauge the credibility and plausibility of a refugee claimant’s story, as well
as the factual evidence that comes before it.
[25]
Issues
of procedural fairness are assessed on the correctness standard.
[26]
Issue
2
Did the Board make erroneous
findings on the issues of credibility and subjective fear?
In my view, the Board based its
finding that the principal applicant lacked credibility on an identifiable
inconsistency that ran throughout her testimony.
[27]
Fundamentally,
the principal applicant explained that her well-founded fear of persecution was
based on threats of death to her and her family received from the FARC. The principal
applicant, perhaps correctly, felt she did not need to explain in her Personal
Information Form (PIF) the danger associated with the FARC but indeed relied on
their notoriety. Her position was that as of the first threat in October 1999,
she had a well-founded fear of persecution. She said that she acquiesced to
those threats and complied. Such acquiescence would indeed support her
subjective fear, yet her actions and following events as the Board indicated,
are at odds with such a position.
[28]
The
most important aspect is that the principal applicant continued to receive
death threats, each either explicitly or implicitly suggesting that she had not
complied with the previous threat. She relies on this to establish the
escalating nature of the danger she was facing. However, I think it quite
reasonable for the Board to point out the inconsistency with her position. It
was with reasoned discussion that the Board held that she was either fabricating
or greatly exaggerating the encounters with the FARC or that she was continuing
to disobey serious threats and thereby acting contrary to the assertion of
having a subjective fear of persecution.
[29]
The
applicants assert that findings of implausibility may only be made in the
clearest of cases and that the present case did not allow for such a finding
(see Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131). In
that case, Mr. Justice Francis Muldoon stated:
7 A tribunal may make adverse
findings of credibility based on the implausibility of an applicant's story
provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu…
[30]
While
this passage makes it clear that the Board cannot base implausibility findings
on generalizations based on a lack of precise information, it does not alter
the standard against which Board findings of fact are reviewed. The Board is
conferred the authority to assess the evidence and make findings of credibility
on common sense (see Byaje v. Canada (Minister of
Citizenship and Immigration), 2010 FC 90 at paragraph 21) as long as
such findings are not made in a perverse or capricious manner or without regard
for the material before it.
[31]
Valtchev above, was
considered by Mr. Justice Yves de Montigny in Awoh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 945. The Board is entitled to
base implausibility findings on common sense and the Board’s own expertise and
experience, provided the Board does not rely on generalizations based on a lack
of information (paragraph 20).
[32]
Practically
speaking, a finding of implausibility is simply an element or rationale for explaining
an overall finding that an applicant lacks credibility or reliability. It is
for the Board to make such findings on the basis of rationality and common
sense (see Shahamati v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 415 (C.A.)).
[33]
In
the present case, the Board’s finding regarding the implausibility of the FARC
to warn individuals at all, let alone five times, appears to have been based
somewhat on speculation or generalizations about the brutality of the FARC.
However, those generalizations do not amount to an error in the circumstances
for the following reasons. First, the implausibility finding was primarily
based on several noted inconsistencies in the principal applicant’s story and
only secondarily on the generalizations about FARC. Secondly, the
generalizations were not contrary to the principal applicant’s position. The
principal applicant’s own comments during the IFA discussion asserted the
brutality of the FARC and the fact that she would be killed upon re-entry. As
such, there was no breach of procedural fairness.
[34]
On
a global review of the Board’s decision, I do not find that the credibility
finding should be interfered with, nor was it unreasonable for the Board to
explain and rely on the inconsistencies to determine that the principal
applicant failed to establish a subjective fear.
[35]
The
applicants’ claim that the Board did not bring the concerns of inconsistencies
to the applicants’ attention is unfounded. The transcript reveals that the
Board repeatedly engaged in discussions during testimony with the principal
applicant, asking her to explain apparent inconsistencies, contradictions or
doubtful aspects of her story. The principal applicant, who appeared with representation,
was adequately put on notice of the Board’s concerns.
[36]
Similarly,
there is no live issue with respect to the adequacy of reasons in this case.
The reasons were more than adequate to explain to the applicants why the
decision was made. I would add that determining credibility is not a perfect
science. All the Board is required to do is show that there was some objective
reason or reasons for taking the position it does.
[37]
Issue
3
Was the
Board’s IFA conclusion unreasonable?
I must reject the applicants’ submissions
with respect to an IFA.
[38]
When
the prospect of an IFA is raised, the burden falls to an applicant to show one
of two things in order to defeat the suggestion. The applicant must either:
1. Show that on a
balance of probabilities, there is a serious possibility of being persecuted in
the proposed IFA area, or
2. Show that in all the
circumstances, it would be objectively unreasonable for the claimants to seek
refuge there.
(see Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1
F.C. 589, [1993] F.C.J. No. 1172 (C.A.) (QL)).
[39]
The
Board raised the possibility of the state of Magdelena in the north as being an
available IFA where the applicants could live. The Board did not base this on a
whim, but on documentary evidence that described the seriously diminished
strength of the FARC in recent years, especially in the north, and the fact
that the state of Magdelena had been completely free of FARC incidents in 2008.
[40]
At
that point, the burden fell to the applicants to establish that the IFA was
unreasonable. The unreasonableness test is hard to meet and requires nothing
less than actual and concrete evidence of conditions jeopardizing the life and
safety of the applicants (see Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) at paragraph 15).
[41]
The
principal applicant’s only response was to the first prong of the IFA test. She
submitted that the FARC was everywhere in the country and would kill her the
moment she returned. She said that the FARC keeps blacklists and that they
would devote resources to finding and killing her because she was a high
profile target for them. She did not have any documentary or other objective
evidence to support these claims. This alone would have prevented the Board
from accepting her position.
[42]
The
applicants did not submit any evidence with regard to any hardship a move to
the state of Magdelena would impose. Thus, it was unnecessary for the Board to
make positive findings in that regard. Those comments cannot amount to a
reviewable error and in any event, were reasonable.
[43]
For
the above reasons, the application for judicial review is dismissed.
[44]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[45]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne 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 :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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