Date: 20101101
Docket: IMM-4790-09
Citation: 2010 FC 1068
Ottawa, Ontario, November 1, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALFONSO GRAU-PARRA and
MARTHA BEATRIZ SAMPEDRO-ARENAS
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 August 27, 2009, wherein the applicants were
determined not to be Convention refugees or a person 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.
[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]
Alfonso
Grau-Parra, the principal applicant and his common law spouse, Martha Beatriz
Sampedro-Arenas, the co-applicant, are citizens of Colombia. The principal
applicant alleges that due to his activities as a driver of politicians and
theatre and media persons, he is perceived as having a political opinion
contrary to the interests of the Revolutionary Armed Forces of Colombia (FARC).
He claims to face a danger at the hands of the FARC if he returns to Colombia.
[4]
The
incidents of persecution included threatening phone calls received on the principal
applicant’s cell phone in 2003, in particular, after having transported
politicians to their respective campaign sites.
[5]
There
is some dispute about what happened after the threatening phone calls. The
Board held that the principal applicant left Colombia in October
of 2003 for the United States, but returned two months later when things
had cooled down. The principal applicant says this never happened and that he
only left Colombia once on August 18, 2004 to go to the U.S. and that since
then, he has never returned to Colombia.
[6]
In
any event, the incident that caused the principal applicant to leave for good
occurred in July 2004 after picking up a couple from the airport. The couple
held him at gun point and had him drive to a location where they beat and
intimidated him. Some colleagues who were following the principal applicant’s
car noticed one of the passengers climb into the front seat and called the head
office. After the couple had told the principal applicant to stop the car, and
began beating him, several vehicles from his office arrived and scared off the
perpetrators.
[7]
The
co-applicant was responsible for the administration of a theatre in Colombia which cooperated
with politicians. She was called by guerrillas who threatened harm against her.
She ceased working for the theatre in April 2004 but received another
threatening call in May of that year. After that, she stayed with a friend
until her departure to the U.S. on August 18, 2004.
[8]
The
applicants claim that they had valid visas for the U.S. which were
extended. After a while, they learned that they had been in the country too
long to make an asylum claim and began to seek other options. In February 2008,
they had a discussion with a lawyer from Montreal who advised them that they
could come to Canada and make a
refugee claim right away. On June 30, 2008, the applicants arrived in Canada and two days
later claimed refugee status.
Board’s Decision
[9]
The
Board rejected the applicants’ claims on the basis that they did not have a
well-founded fear of persecution for a Convention ground in Colombia. The Board
drew a negative inference from the principal applicant’s re-availing and not
claiming asylum in the U.S. in a timely manner. The Board cited his
2003 visit to the U.S. at a time when he had been receiving
threatening calls and his failure to claim protection while there. The
principal applicant then returned to Colombia and thus re-availed. He
even resumed the same business activities as he was doing before he left. The
Board did not find it credible or reasonable for a person to put themselves in
the very same situation which he had fled two months before.
[10]
The
Board further noted that the applicants did not claim asylum in the U.S. even though
they were there for five years. They did not even inquire about it until the
one year period of eligibility had lapsed. The Board did not find it reasonable
that they simply relied on other people who told them that Colombians do not
get asylum. The Board found their actions inconsistent with having a subjective
fear.
[11]
The
Board also noted that while the co-applicant received threatening calls, she
made no attempt to obtain protection from the police or file a complaint.
[12]
Fundamentally,
the principal applicant had not established that he had been targeted for
political reasons. He was a successful businessman and had an advertised
business phone number. Although the Board noted that there was no mention of
the July 31, 2004 attack in the Port of Entry notes, there were other problems.
The Board found the whole description of the events implausible and more likely
the work of common criminals than the highly armed and sophisticated FARC. When
asked why he could not return to Colombia, the principal
applicant indicated that it was because he would be considered a journalist.
Yet there was no evidence to substantiate that his occupation was that of a
journalist other than a course he had completed showing he was a communicator.
The Board found this answer to be inconsistent with his Personal Information Form
(PIF) and drew a further negative inference. The Board found the principal
applicant’s claim not to be credible and rejected it.
[13]
When
asked about the content of the threatening calls, the principal applicant
indicated that it was actually the co-applicant who had received them. She
testified that she received calls for the rental of vans at their office, but
also claimed that she met the callers once at the theatre where she worked.
Despite testifying to having met the persecutors, the co-applicant could not
give any more details or descriptions that would have added to her story. In
the end, the Board drew a negative inference from her inability to give further
details and noted that some of the calls could have been more in the nature of
complaints or threats directed at the theatre. Since the co-applicant could not
establish that she had a well-founded fear of persecution, her claim was also
rejected.
Issues
[14]
The
issues are as follows:
1. What is the standard
of review?
2. Can the Board’s
credibility finding stand despite the misstatement of fact with regard to the
principal applicant’s return to Colombia?
3. Was the Board’s
ultimate conclusion unreasonable?
Applicants’ Written Submissions
[15]
There
was no evidence that the principal applicant had left Colombia in October
2003. The evidence was that he left Colombia for the first time
(with the co-applicant) in August 2004. There was no evidence that the principal
applicant had returned to Colombia. Although the Board
also drew negative inferences from the applicants’ failure to claim refugee
status in the U.S., it is
impossible to divorce this from the Board’s erroneous finding above.
[16]
The
impact of the Board’s erroneous finding was significant and led to the finding
that the principal applicant had re-availed himself, that he lacked credibility
and that he lacked a well-founded fear of persecution. It also skewed the
period that the Board considered the applicants to have failed making a claim
in the U.S. It was not
five years. They were in the U.S. from August 2004 to June 2008 and had
legal status in the U.S. for one year. In any event, an unexplained
delay in claiming refugee status would not have been determinative of their
claim.
[17]
The
Board also erred by failing to cite the Board’s persuasive decision on Colombia which
recognizes the Colombian state’s general inability to protect its citizens from
the FARC. This was significant because the Board seemed to rely on the
co-applicant’s failure to contact police.
[18]
The
Board also erred in another aspect of its negative credibility finding. The
Board improperly drew a negative inference from the failure of the applicants
to disclose the final attack on the principal applicant in the Port of Entry notes.
In reality, that interview was very brief and the applicants were never asked
to state their entire story. It is wrong for the Board to base a negative
inference on a claimant’s greater level of detail in his PIF.
Respondent’s Written Submissions
[19]
The
respondent admits that the Board may have misstated a fact regarding the principal
applicant’s re-availment but this misstatement was immaterial. The Board’s
conclusion on the applicants’ credibility did not turn on this finding.
[20]
The
applicants were not credible regardless of the re-availment finding. The Board
drew a negative inference from the fact that the final assault the principal
applicant alleged was not mentioned in the Port of Entry notes. It was reasonable
for the Board to do this because at the port of entry, the principal applicant
was asked why he left Colombia and the principal
applicant at the hearing relied on the final assault as the central aspect of
his claim. The Board also did not find his description of the final assault
plausible and gave reasons for this finding. The Board also found that the
co-applicant was evasive when telling her story and provided reasons for making
this finding. The Board’s credibility findings were also buttressed by the fact
that the applicants did not claim asylum in the U.S. despite
being there for four years. In all, the credibility findings against the
applicants should stand.
[21]
The
Board did not err by failing to consider the persuasive decision. The applicants’
assertion that the Board should have done so was based on their alleged fear of
the FARC. The Board, however, did not accept that the FARC was targeting them,
thus that document was irrelevant. In any event, the Court cannot fault the
Board for not considering an internal document.
Analysis and Decision
[22]
Issue
1
What is the standard of
review?
The
applicants seek to have the Board’s ultimate conclusion quashed and the matter
remitted back for reconsideration. The applicants say the Board misstated a
fact and their contention is that this misstatement was significant to the
Board’s finding that the applicants lacked credibility and this, in turn,
impugned the Board’s ultimate conclusion that the applicants were not refugees.
It is important, however, for the Court to take heed of the proper standard
against which to review the Board’s findings and its ultimate conclusion before
determining whether the Court can interfere with the Board’s ultimate
conclusion.
[23]
The
specialized skill of the Board is to be recognized and the Board is to be
afforded a significant degree of deference in its highly fact and context
driven adjudication of refugee claims. The Board is in a much better position
than a reviewing court to gauge the credibility and plausibility of a refugee
claimant’s story. A credibility finding is not a finding of mixed fact and law.
It is a finding of fact. Findings of fact made by the Board 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-7, paragraph 18.1(4)(d)). Indeed, it was
Parliament’s express intention that administrative fact finding would command
this high degree of deference (see Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46).
[24]
Thus,
credibility findings of the Board are to be reviewed against the statutory
standard of review provided for in paragraph 18.1(4)(d) of the Federal
Courts Act (see Diabo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1772 at paragraph 3).
[25]
Ultimate
refugee determinations of the Board are reviewable against the standard of
reasonableness (see Kaleja v. Canada (Minister of Citizenship and
Immigration), 2010 FC 252, [2010] F.C.J. No. 291 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 a decision reasonable, concerned mostly 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).
[26]
A
finding of fact overturned by a reviewing court may lead to a finding that the
Board’s ultimate decision was unreasonable but will not always. As I noted in Haque
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 703 at paragraph 27:
… even the existence of a real error,
omission or misconstruction will not discharge the burden before the applicants.
In other words, an error alone cannot be a reviewable error. Some errors may
directly impugn the very merits of a decision, while other errors may be of
little consequence. The above quoted paragraph from the decision in Dunsmuir
requires courts to inquire “into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes.” The applicants must ultimately establish that one of the above tests
is met before the reviewing court will interfere.
[27]
Issue
2
Can the Board’s credibility
finding stand despite the misstatement of fact with regard to the principal
applicant’s return to Colombia?
The
respondent does not argue here that the Board did not misstate a fact. Rather,
it is the respondent’s contention that the Board’s error was immaterial in the
sense that its findings regarding the credibility of the applicants did not
turn on this.
[28]
I
must reject the respondent’s argument. While the Board validly pointed out
inconsistencies and other problems regarding the plausibility of each applicant’s
story which could have been used to support a negative credibility finding, I
believe the Board’s final determination of credibility was severely tainted by
its error.
[29]
The
Board’s credibility finding was based on a number of factors but a key aspect
was that it was implausible that the principal applicant would be threatened by
the FARC and then return not only to Colombia, but to the same city
and the same workplace where the threat had taken place. This finding was front
and centre in the Board’s written reasons for its decision. It was clearly not
a minor or peripheral matter for the Board.
[30]
Because
the factual determination of credibility was at least in part based on a grave
misunderstanding of a key fact, I have little choice but to hold that it was
made in a capricious manner without regard for the evidence. As such, I would
interfere in the Board’s finding of credibility and hold that it was made in
error.
[31]
Issue
3
Was the Board’s ultimate
conclusion unreasonable?
The applicants have raised
several other aspects of the decision in which it says the Board erred which in
total render the Board’s decision unreasonable. In my view, it is unnecessary
to wade into those aspects of the decision. The Board’s erroneous finding of
credibility is sufficient in my view to render the Board’s ultimate conclusion
unreasonable.
[32]
The
error in relation to the Board’s credibility finding went to the very heart of
the Board’s ultimate conclusion. Naturally and quite logically, a negative credibility
finding will damage a refugee claimant’s ability to establish the central
elements of his claim. In this case, the Board found the applicants’ story of
persecution at the hands of the FARC less than convincing and used the
misstated fact of the principal applicant’s re-availment to build its case
against the existence of any well-founded fear.
[33]
The
error in question had significant and permeating effects and I am of the view
that it rendered the Board’s ultimate conclusion unreasonable. The error robs
the decision of a justifiable base. I am unable to determine how the Board
would have concluded in the absence of the error. The Board did not make any
separate determinative finding that was sufficiently independent of the error.
[34]
The
law requires that the applicants be awarded another opportunity to present
their case before the Board and for a reasonable decision to be made.
[35]
The
application for judicial review is therefore allowed and the matter is referred
to a differently constituted panel of the Board for redetermination.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a differently constituted panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal Court with respect to
any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
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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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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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