Date: 20110209
Docket: IMM-3768-10
Citation: 2011 FC 154
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ANGELA DIANNE LEAL ALVAREZ
JOSE JAIR OROZCO FAJARDO
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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 of the May 28, 2010, decision of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board (IRB) that determined
the applicants were neither Convention Refugees nor persons in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act (IRPA). For the reasons that follow, the
application is granted.
[2]
The
applicants
are citizens of Colombia. Angela Alvarez
is the principal applicant. Her common-law spouse who she met in the United States, also filed a claim
with the RPD, but he admitted that he did not leave Colombia based on a fear of
persecution. The principal applicant claimed that she was a victim of violence,
serious threats of extortion and death threats made by the Fuerzas Armadas
Revolucionarias de Colombia (FARC) – Revolutionary Armed Forces of Colombia. The
RPD rejected her claim on the basis of credibility and on the objective
test for fear found in sections 96 and 97 of IRPA. In addition the
RPD found that Ms. Alvarez had a viable internal flight alternative within Colombia. There are two
reviewable errors in this decision.
[3]
The
first error arises from the RPD’s approach to the evidentiary basis of the
applicant’s fear of persecution or harm. The RPD framed the determinative issue as one of
credibility in the following manner:
[9]
The determinative issue in this case is credibility, and, in relation to that,
the well-foundedness of the claimant’s fear. The panel finds the principal
claimant’s story not to be wholly credible in its material aspects due to the
following reasons.
[10]
She said that in June 2006, she and fellow employees encountered the FARC at
one of their roadblocks in the area. The FARC people had examined their cedulas
(national identity cards) and then let them go. On learning of this, the mayor
had advised them to cease their social work. However, she said that despite her
compliance, she received a phone call from the FARC in September 2006 declaring
her to be an enemy of their organization, was beaten up by them and even
received a sufragio note from them. Noting that she was merely an
assistant and/or a secretary in this mayor’s program, and had, in fact,
complied with the FARC’s demand, the panel finds it hard to believe that the
FARC would focus so much attention on her and continue to harass her with
threats and phone calls even after she had left and then returned to Medellin
from Costa Rica. [Application Record of the Applicants, pp. 8-9]
[4]
First,
by focusing
on the principal applicant’s position in the civil administration of the
municipality, as opposed to the functions that she performed in that capacity,
the RPD departed from the direction of the Supreme Court of Canada in Canada
(Attorney General) v Ward [1993] 2 SCR 689. The evidence before the RPD was that the principal
applicant’s responsibilities included working with displaced
persons in areas where the FARC was active, visiting areas
previously occupied by the FARC, examining the dead,
photographing their belongings and working with villagers, “ ...
to make sure that the peasants really understood the dire consequences of
joining these unlawful groups.” By focusing on the position or rank the principal
applicant held in the civil administration of the municipality, the RPD ignored
her actual responsibilities in the implementation of a relief program,
including those noted above. The RPD thus ignored material
evidence and neglected to consider whether her activities would
be perceived as political activity by the FARC. This is a reviewable
error.
[5]
With
respect to the second error, the applicant testified that she had been kidnapped
and beaten by the FARC. The RPD insisted on “conclusive proof” of this
allegation. The RPD also rejected Ms. Alvarez’ claim as it was not satisfied “on
a balance of probabilities, she was not or is not a target of the FARC.” Neither
of these findings are predicated on the appropriate legal standard. The principal
applicant did not have the burden of providing either conclusive proof or proof
on a balance of probabilities. The test is whether there was a serious
possibility of persecution or harm. As O'Reilly J. noted in Alam v Canada (Minister
of Citizenship and Immigration) 2005 FC 4, where the Board has incorrectly elevated
the standard of proof, or the court cannot determine what standard of proof was
actually applied, a new hearing can be ordered; see also Yip v Canada (Minister
of Employment and Immigration) [1993] FCJ No 1285. This too is, therefore,
a reviewable error.
[6]
For
the foregoing reasons, it cannot be said that the RPD’s finding that the applicants
were neither Convention Refugees nor persons in need of protection is within
the range of possible and acceptable outcomes defensible in respect of the
facts and law.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The matter
is referred back to the Immigration Refugee Board for reconsideration before a
different member of the Board’s Refugee Protection Division. No question for certification
has been proposed and the Court finds that none arises.
"Donald J. Rennie"
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