Date: 20110622
Docket: IMM-6897-10
Citation: 2011 FC 746
Toronto, Ontario, June 22, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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LUIS HUBER CAMACHO PENA
ANA CECILIA CARDENAS DUARTE
LINA VANESA CACERES CARDENAS
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Applicants
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and
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THE 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, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, of a decision of the Refugee
Protection Division of the Immigration and Refugee Board. The Board determined
that the applicants were neither Convention refugees nor persons in need of
protection.
[2]
Although
I have been convinced that the Board made some errors and unreasonable
findings, the applicants have failed to establish that the Board erred in
finding that they had not rebutted the presumption of state protection.
Background
[3]
The
applicants are a family from Bogota, Colombia: husband Luis Huber Camacho Pena, his wife Ana
Cecilia Cardenas Duarte, and their adult daughter Lina Vanesa Caceres
Cardenas. The applicants’ fear relates to the experiences of the wife, Ana.
[4]
Ana’s
extended family has had a long history of being persecuted by the Revolutionary
Armed Forces of Colombia (FARC). Prior to meeting Luis in 1993, she was
married to Pedro Fernando Caceres. Pedro’s family had a close relationship
with the Colombian Liberal Party, and his father was a Councillor for the municipality of El Penon. Ana also became
involved with the Liberal Party in the mid-1980s.
[5]
During
this time, a number of trucks were being set on fire by FARC. Pedro, who
worked for an insurance company, was assigned to investigate. He began to
receive threats from FARC, and was ultimately killed in February 1986,
presumably by FARC.
[6]
Ana’s
brother-in-law, Jairo Hernan Caceres Escobar, was also targeted by FARC, in his
case for being an active member of the Liberal Party. He was threatened with
death and it was demanded that he make a financial contribution to FARC, which
he refused. Jairo was killed by FARC in August 1993.
[7]
Despite
the death of her husband and brother-in-law, Ana continued contributing to the
Liberal Party, participating in “health brigades” intended to provide basic
health care to low-income communities while raising support for the Party.
[8]
In
May 1995 Ana’s father, Ramon Cardenas Daza, was fatally struck by a vehicle in
front of the family home. Two weeks later, Ana received a phone call from an
individual who identified himself as a member of FARC and threatened to kill
all the members of Ana’s family forming part of the “corruption” of the
country. Ana hired a lawyer to investigate, and the investigation revealed
that the driver of the vehicle was a member of the police who was a FARC
informant.
[9]
After
Ramon’s death, Ana’s family split up and relocated, and Ana ceased her
activities with the Liberal Party. In February 1996, she and Luis opened an IT
consulting business. Ana required professional help to overcome the tragedies
she had suffered, and is still not fully recovered. It was her husband, Luis,
who testified at the hearing.
[10]
In
1999-2000, Ana resumed her activities with the Liberal Party health brigades.
In late October 2001, she received a phone call at her house from a FARC
member. The caller told her that she should stop being a member of the corrupt
Liberal Party, that FARC knew that she had a business, and that she had to
provide financial support to FARC to avoid being killed. The caller said
payment details would be resolved later, and warned Ana not to contact police
or the applicants would be killed immediately. The caller also warned that
non-compliance would result in the applicants being declared as FARC military
targets. The applicants received subsequent calls in which FARC requested 2
million pesos and warned them that they were under surveillance.
[11]
The
applicants assert that the phone calls put them in a state of panic. They
refused to contribute to FARC, moved in with relatives, and shut down their
business. They say that they knew the authorities would not be able to protect
them and decided their only option was to seek protection abroad. Accordingly,
they fled to the United
States in
January 2002. Their US asylum claims were rejected, and an appeal from the
rejection was dismissed in May 2009, at which time the applicants sought
protection in Canada.
[12]
They
say that Ana’s mother received phone calls asking for the applicants’
whereabouts and that she was forced to relocate.
[13]
The
Board found that the applicants were neither Convention refugees nor persons in
need of protection. Under the heading “Nexus,” the Board wrote that “As the
panel does not believe the claimants to have been or are targeted by the FARC, the
panel does not see any connection to a Convention ground.”
[14]
The
Board found that credibility was a determinative issue in this case. The Board
noted that none of the applicants had had any personal confrontation with the
FARC. The Board determined that this lack of personal confrontation and the
absence of supporting evidence did not lend a “ring of truth” to their story of
being targeted by FARC, who, the Board stated, are known to aggressively chase
down and confront their targets.
[15]
The
Board acknowledged that a claimant’s testimony must be presumed to be true
unless there is reason to doubt it but stated that since the applicants’ story did
not have a “ring of truth” it did not believe the phone calls from FARC ever
occurred.
[16]
The
Board found that state protection was an alternative determinative issue. The
Board held that the applicants had not established clear and convincing proof
of lack of state protection for individuals like them in Colombia. They had not filed
any denunciation with the police or GAULA (the government’s anti-terrorism unit
dealing with extortion and kidnapping) because they had been warned against
doing so by FARC. Accordingly, the Board determined that the applicants had
not taken any reasonable steps at all to obtain state protection before seeking
international protection.
[17]
The
Board drew on the documentary evidence and made a series of observations about
Colombia addressing, among other things, law enforcement agencies and efforts
to provide state protection, democracy and fair elections, the existence of a
witness protection program, procedures to promote the rule of law,
investigations and prosecutions of human rights abuses, the trend towards
higher conviction rates, and increased security in Colombia. This review led
the Board to conclude that Colombia is a functioning democracy where civilians have recourse to
security forces when they require protection from criminal acts, and that those
accused of criminal acts are held accountable for their actions through the rule
of law.
[18]
The
Board then turned its focus to FARC, noting that since 2002 the government has
committed significant resources to protecting citizens from FARC and other
paramilitary groups. It noted that it had been eight and a half years since
the applicants left Colombia and reiterated that the
applicants have not had any contact with FARC besides phone calls. The Board
reasoned that even if FARC had targeted the applicants in the past, it would be
unlikely that FARC would try to track them down years later in a metropolis
like Bogota, especially given
FARC’s diminished resources and the fact that the applicants do not have a
profile that would attract continuing attention.
[19]
The
Board found that FARC’s lack of action in chasing, tracking down, or confronting
the applicants when it had the chance to do so suggested that the applicants
are not persons of continuing interest to FARC (if FARC had indeed targeted
them at all). Accordingly, the Board did not believe FARC would target the
applicants if they returned to Bogota.
[20]
Noting
that that state protection must be adequate but not necessarily perfect, the
Board concluded that adequate state protection existed for the applicants in Colombia, and particularly in Bogota. The Board found that
the applicants had not provided clear and convincing proof of the lack of state
protection, and concluded that there was not a serious possibility the
applicants would face persecution or a risk to life if they were to return to
Colombia. The applicants’ claims were accordingly rejected.
Issues
[21]
The
applicants raise four issues:
1.
Did
the Board err in concluding there is no nexus to a Convention ground?
2.
Did
the Board err in its credibility assessment?
3.
Did
the Board err in its conclusions on state protection and internal flight
alternative?
4.
Did
the Board err by failing to conduct a separate s. 97 analysis and by importing
into a general s. 97 conclusion considerations of credibility and subjective
fear?
Analysis
1. Nexus
[22]
The
applicants are right that the following statement from the Board on nexus is
problematic: “As the panel does not believe the claimants to have been or are
targeted by the FARC, the panel does not see any connection to a Convention
ground.” It is problematic because, contrary to the Board’s reasoning, the
truth of the applicants’ story and nexus to a Convention ground are two
separate issues. The issue of nexus involves determining whether a claimant’s
alleged well-founded fear of persecution can be tied to one of the grounds
listed in s. 96 of the Act. Credibility involves determining whether the
alleged persecution occurred at all. If the applicants’ evidence had been
believed, then nexus to a Convention ground, political opinion, would have been
established.
[23]
Nonetheless,
this apparent conflating of credibility and nexus does not render the decision
as a whole unreasonable. The statement is tangential to the Board’s two
determinative findings in this case: that the applicants were not credible and
that state protection was available to them. The Board’s statement on nexus
does not amount to an error sufficient to warrant allowing this application.
2. Credibility
Assessment
[24]
The
Board’s negative credibility finding was unreasonable. The Board did not, as
it purported to do, presume the applicants’ evidence to be true. It made its
credibility finding based on an implausibility finding and an apparent
expectation of corroborating evidence.
[25]
In Leung
v Canada (Minister of Employment
and Immigration)
(1994), 81 FTR 303 (TD), Associate Chief Justice Jerome held, at paras. 14 and
15, that:
… the Board is under a very clear duty to
justify its credibility findings with specific and clear reference to the
evidence.
This duty becomes particularly important
in cases such as this one where the Board has based its non-credibility finding
on perceived "implausibilities" in the claimants' stories rather than
on internal inconsistencies and contradictions in their narratives or their
demeanour while testifying. Findings of implausibility are inherently subjective
assessments which are largely dependant on the individual Board member's
perceptions of what constitutes rational behaviour. The appropriateness of a
particular finding can therefore only be assessed if the Board's decision
clearly identifies all of the facts which form the basis for their conclusions.
[26]
Here,
the evidence the Board offered for its implausibility finding was a general
reference to the Board’s National Documentation Package for Colombia, which according to the
Board indicated that FARC is known to aggressively chase down and confront its
targets.
[27]
It
must be pointed out that a statement of alleged fact supported only by the
Board’s National Documentation Package and with no reference to a specific
document or page is virtually useless to the Court or to any person attempting
to understand the basis for the statement. In this case, even the Minister’s
counsel was unable to locate a passage in those numerous pages that reflected
or supported the Member’s bald statement of fact. If it is in the Board’s
National Documentation Package, it was not apparent to anyone involved in this
case, except apparently to Member Lim.
[28]
In
any event, this evidence, if it exists, is simply not a sufficient basis to
doubt the applicants’ narrative. The Board made no finding that there was any
inconsistency or contradiction in the applicants’ version of events and nowhere
in its reasons does it suggest that the principal applicant was anything but
straightforward and honest in his testimony. Just because FARC is known to
aggressively track down its victims does not mean that it is reasonable to
brand any narrative that strays from this pattern as implausible. Such a
determination, without more, is wholly inconsistent with a presumption that the
applicants were telling the truth.
[29]
Furthermore,
in the circumstances of this case a lack of documentary evidence cannot be used
to impugn the applicants’ credibility. The Board refers to a lack of
“necessary documentary evidence” without identifying what evidence it expected
the applicants to present. Given that the threat was by telephone one must
question what documentary evidence could be adduced. The only document that
comes to my mind is a police report. However, given that the applicants
explained that they never contacted the authorities, the absence of a police
report cannot be used to impugn their credibility. In fact, had there been a
police report it would have been evidence that their testimony, at least in
this respect, was false. Given the facts before the Court, the absence of a
police report may be an issue when considering state protection, but not when
considering the applicants’ credibility.
3. State Protection and
Internal Flight Alternative
[30]
The
Board clearly stated that its determination on state protection was an
“alternative” finding to credibility and was “determinative.” The state
protection analysis addressed country condition evidence and was not based on
the applicants’ credibility. I find that there is no basis for the applicants’
submission that the Board’s credibility finding tainted its entire decision.
[31]
What
is absent in the applicants’ submissions on state protection is a meaningful
response to the fact that they made no effort to seek protection in Colombia. All of the Board’s findings
must be read in the context of its undisputed finding that the applicants “did
not take any reasonable step at all to obtain state protection first in their
home country before seeking international protection.”
[32]
The
essence of the parties’ dispute on the Board’s state protection analysis is
whether the documentary evidence that the Board did not refer to contradicts
its findings to such an extent that the Board erred by not specifically
addressing it.
[33]
In
my view, the evidence the applicants say the Board should have referred to is
not of such relevance that the failure to specifically address it results in a
decision made without regard to the evidence. The applicants point to evidence
that FARC remains an ongoing threat in Colombian society; however, the Board
accepted that FARC continued to pose a threat, noting that the evidence shows
that the country is still wrestling with security problems and that crime is
still very much a problem in Colombia. The applicants’ reference to a UK Home
Office Operational Guidance Note from 2008 indicating that the state “cannot
currently offer sufficient protection from [FARC]” is on point, but it is not
sufficient to demonstrate that the Board failed to evaluate these issues or
ignored evidence. The UK Home Office’s statement was made in the context of
reference to the government’s weak authority in some parts of the country, and
the Board made extensive reference to increased security in urban areas,
particularly Bogota, where it concluded the
applicants would be protected from FARC. The Board also provided extensive
evidence of the decline in FARC’s operational capacity and the effectiveness of
government initiatives.
[34]
Furthermore,
the evidence the applicants allege the Board ignored is general country condition
evidence and it is not specifically tied to the applicants’ own situation. The
requirement to specifically refer to contradictory evidence applies to evidence
specific to a claimant: Shen v Canada (Minister of Citizenship and Immigration), [2007] FCJ 1301 (TD),
at para. 6; Quinatzin v Canada (Minister of Citizenship and Immigration), 2008 FC 937, at para.
29.
[35]
In
any case, I am not convinced that the Board failed to consider the evidence in
question. The Board clearly acknowledged that FARC posed a serious threat to
citizens of Colombia. This and the Board’s
statement that it had considered “counsel’s submissions, country articles and
reports tendered by the claimants into evidence, and the National Documentation
Package” satisfies me that no error was committed in the Board's assessment of
the documentary evidence on state protection.
[36]
The
applicants’ allegation that the Board relied on irrelevant considerations is
without merit. First, the fact that Colombia is a democracy is, in fact,
relevant because the burden on a claimant to rebut the presumption of state
protection is higher where the state in question is a democracy, and the more
the democratic the state and its institutions, the higher the burden. The
Board’s observations regarding Colombia’s democratic political structure and its successful efforts
to stamp out corruption were directly relevant to calibrating the level of
evidence required to rebut the presumption of state protection.
[37]
Second,
the Board’s findings with respect to increased controls on military and
civilian authorities are in fact relevant even though the claim of the
applicants is that they fear FARC. The Board’s findings that Colombia has a
police force, military, and judicial system capable of apprehending and
prosecuting FARC agents was directly relevant to the ability of the applicants
to turn to the authorities for protection. Further, the Board’s recognition of
Colombia’s witness protection
program is of particular relevance.
[38]
I
also do not accept the applicants’ submission that the Board dealt with
initiatives and efforts without assessing whether adequate state protection was
actually available. Throughout its reasons the Board referred not only to the
government’s initiatives, but also to the tangible impact those initiatives
had.
[39]
Despite
the applicants’ submission that the Board erred on its supposed internal flight
alternative determination, it is clear that the Board made no such finding.
The Board found that the applicants, who are from Bogota, would be able to
obtain state protection in Bogota.
4. Failing to conduct a
separate s. 97 analysis
[40]
Distinct
analyses under ss. 96 and 97 were not required. An absence of state protection
is, as suggested by the respondent, an essential component of both sections. Furthermore,
throughout its reasons the Board referred to both sections, making it clear
that its analysis applied to both persecution and risk to life. The Board’s
approach was permissible given that there was no evidence calling for a
distinct state protection analysis vis-à-vis s. 97: Sida v Canada (Minister of
Citizenship and Immigration), 2004 FC 901, at para. 15 and Brovina v Canada (Minister of
Citizenship and Immigration), 2004 FC 635, at paras. 17-18.
Conclusion
[41]
For
these reasons and despite the Board’s earlier-identified failings, the finding
on state protection is determinative and was reasonable. This application is
dismissed. Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
the application for judicial review is dismissed and
no question is certified.
"Russel
W. Zinn"
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