Date: 20080317
Docket: IMM-2658-07
Citation: 2008 FC 354
Ottawa, Ontario,
March 17, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
FRESIA BEATRIZ LONDONO SOTO
MARIA ALEYDA LONDONO SOTO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Refugee
Protection Division (RPD) dated June 11, 2007 in which the Panel Member denied
refugee status to the Applicants; Fresia Beatriz Londono Soto (Fresia) and her
sister, Maria Aleyda Londono Soto (Maria).
[2] The
Applicants are citizens of Colombia who claim they fear persecution at the hands of the
Revolutionary Armed Forces of Colombia, or the “FARC”. The FARC is one of Colombia’s
oldest and most powerful guerrilla terrorist groups, heavily involved in the
trade of illegal narcotics and known for using kidnapping and extortion to
force citizens to pay vacuna (taxes or extortion monies). Documentation
on country conditions in Colombia clearly shows that the FARC targets those it perceives
to be against its communist ideology, in particular land owners, professionals
and government workers. The United States Department of State includes the FARC
on its list of foreign terrorist organizations, as does the European Union.
[3] For
many years, the Applicants’ family held a farm in Manzanares. The written
statement attached to Fresia’s Personal Information Form (PIF) (hereinafter
referred to as the “statement”) explains that Maria was the administrator of
the farm. The evidence at the hearing was that Maria initially worked on the
farm and later, when she got a job at the University of Los Andes, continued to travel to the farm on weekends to
assist her father with the maintenance of the farm. Fresia testified that for
many years, the FARC had demanded (and the family had paid) vacuna for
the farm in the amount of 200 – 300 thousand pesos every few months. Fresia
testified that, at some point in 2003, the family stopped making these payments
because they felt “this situation of being forced to give up their financial
resources could continue no longer”. Fresia’s statement explained that the
family no longer had enough money to keep paying the vacuna. In
retaliation for not paying, the FARC stole cattle and equipment from the farm,
and harassed the father and Maria with phone calls, demanding payment.
[4] Fresia
testified that because of these harassing demands for payments, and due to the
increased presence of the FARC on and around the farm, her family “partially
left the farm” as of November 2005, and then completely refrained from going
there at some point in 2006. At a later point in the hearing, when questioned as
to when Maria ceased her visits to the farm, Fresia testified that Maria
stopped visiting in March 2006, but that her “activities there” were decreasing
as of the previous November. According to Fresia’s statement, the Applicants’
father left the farm for good on May 30th, 2006. It is the Applicants’
current belief that FARC members eventually “took over” the farm, using it as a
place to stay or to eat.
[5] Fresia
testified that she was personally harassed by FARC members due to her position
as coordinator of a government program focused on the eradication of illegal
crops, such as cocoa and poppy flower. According to Fresia’s statement, in
mid-2005 she was responsible for coordinating families to volunteer for this
program. The FARC began to pressure these communities to not participate in the
program and they threatened those that worked on the program. Fresia testified
that on January 15, 2006, members of the FARC stopped a bus she was traveling
on and took her and other members of the program to a rural area where the FARC
physically and verbally harassed them and stole Fresia’s computer. (The
“January 15th incident”) A few days later, on January 19th,
Fresia and her colleague received a threatening phone call while in the town of
Pasto from a man who identified himself as a member of the FARC. Fresia testified
that the man said if they did not stop promoting the program, they would be
attacked. Fresia and her colleague reported the phone call to authorities in Bogota.
[6] According
to her oral testimony, Fresia ceased her work with this program at the end of
January 2006; however the harassing phone calls did not stop and the FARC
continued to threaten her and make threats against her family members. Fresia
testified that, on June 15 2006, she was again stopped by FARC members and told
that the FARC knew about her involvement with the program. They demanded
information regarding other persons involved with the program and gave her until
July 20th to give them the information they were seeking. (The “June
15th incident”)
[7] Fresia
testified that this final incident prompted her and her sister, Maria, to flee Colombia. On
July 18, 2006, they left the country and arrived in the United States. Approximately
one week later, on July 25, 2006, they entered Canada and made a claim for
refugee status based on their political opinion and/or membership in a
particular social group.
I.
Decision
[8] Due
to inconsistencies between documentation on country conditions and the
Applicants’ evidence, the Member determined that portions of the Applicants’
story were implausible and thus, not credible. The Member also found that the
Applicants’ delay in departing Colombia demonstrated a lack of subjective fear. The Member
concluded that the Applicants were not Convention refugees based on their
political opinion or membership in a political party. The Member also found
that the Applicants were not “persons in need of protection” in accordance with
section 97(1)(a) and (b) of the IRPA.
II.
Issues
[9] A.
Were the Member’s adverse findings on credibility/plausibility
unreasonable?
B. Was the Member’s finding that the Applicants do not
hold a subjective fear based
on a delay in departing Colombia, patently unreasonable?
III.
Standard of Review
[10] Assessments
of credibility go to the core of the RPD’s jurisdiction and are to be reviewed
on a standard of unreasonableness, Xu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1701; Griffiths v. Canada (Solicitor General), 2006 FC 127 at para. 16. This standard applies equally
to findings with respect to subjective fear, Abawaji v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1065 at para 10. See also Dunsmuir v. New Brunswick, 2008 SCC 9.
IV.
Analysis
A. Credibility / Plausibility Findings
[11] Determinations
of credibility and assessment of evidence by the Immigration Board will be
found unreasonable only if they are based on an erroneous finding of fact made
in a manner without regard to the material before it, Akinlolu v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 296 (QL) at para. 14; Kanyai
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 850 at para. 9. There is no change to the
level of scrutiny a court should apply when the findings of credibility were
based on implausibilities in the evidence, Aguebor v. Canada (Minister of
Employment & Immigration) (1993), 160 N.R. 315 (C.A.).
[12] The
Member in the present case made adverse findings against the Applicants’
credibility based on what he felt were inconsistencies between the Applicants’
evidence and the documentation before him on country conditions in Colombia. These
inconsistencies led the Member to doubt the plausibility of the Applicants’
story. Specifically, the Member pointed to three areas of the evidence where he
felt the documentary evidence before the tribunal demonstrated the events could
not have happened in the manner asserted by the Applicants: i) the fact that no
members of the Applicants’ family were targeted by the FARC; ii) the presence
of a man on the farm who was paid by the Applicants’ father after the farm was
occupied by the FARC; and iii) the likelihood of the FARC continuing to target
Fresia once they had obtained her computer and after she had left her position
as coordinator of the illegal crop eradication program. An examination of the
record reveals the unreasonableness of the Member’s reliance on these
inconsistencies.
[13]
Inconsistent or implausible evidence can be an appropriate basis upon which to
draw adverse findings of credibility, Aguebor v. (Canada)
Minister of Employment and Immigration), 160 N.R. 315. However, in making such findings, a tribunal must
have regard for the totality of the evidence before it and cannot make an
adverse credibility finding while ignoring evidence by the claimant explaining
apparent inconsistencies, Owusu-Ansah v. Canada (Minister of Employment
& Immigration) (1989) 8 Imm. L.R. (2d) 106 (C.A.). Here,
it is clear that the Member ignored or did not make reference to relevant evidence
that supported the Applicants’ story and explained these inconsistencies, making
his findings on credibility, unreasonable.
i) No members of the Applicants’ family
were targeted by the FARC
[14] Country
documentation on Colombia clearly indicates that if the FARC does not get what
it wants from a person, the relatives or family of those in whom the FARC has
interest can also be at risk. The Panel Member accepted this, and pointed to
documentation that attributes high numbers of kidnapping incidences to the FARC
and places certain groups, such as social workers, politicians, and professionals
at higher risk for such attacks. The Member found that the Applicants’ sister,
and Fresia’s husband and son (although, they fit the profile of those who are
at risk) were not targeted, and relied on this finding to draw an adverse
inference as to the Applicants’ credibility.
[15]
I find that the Member’s finding on this point does not take into
consideration the following evidence from page 434 of the Tribunal Record:
Q: Okay. Now your husband
and your son are in Colombia, what’s their situation currently?
A: There situation is one
of fear; given what’s taken place. At this time my husband is working over
there and also my son.
Q: Are they having any
problems?
A: Yes, they’ve had some
difficulties.
Q: Such as?
A: Not only financial
difficulties but also difficulty caused by fear because of what’s been taking
place. My father has continued receiving threatening telephone calls because of
his not paying or complying with their demands for payment.
Q: And how about your
sister Leticia, what’s her situation?
A: Her situation is also
a delicate one. She works – she’s also working for the Colombian Social Welfare
Institute; she’s a social worker. The area, the region in which she’s working
is also a region that’s classified as public order.
Q: What does that mean?
A: Well, that’s she’s
also at risk
Q: And has she had any
problems with FARC or anybody else?
A: She’s had problems not
only with the FARC but also with the para-military….
Q: And just briefly what
sort of problems has she had with them and why?
A: Well she’s been
detained in a brutal area because of the work she’s involved in.
[16] As
evidenced from the above passage, Fresia gave clear evidence at the hearing that
her sister has been detained by the FARC and that her husband and son live in
fear. In my view, the Member’s finding not only fails to acknowledge the above
evidence, but also fails to recognize that the documentary evidence he cites lends
support to the Applicants’ story. Documentation on Colombia
details the FARC’s patterns of using roadblocks to stop those they are
targeting, stealing laptops and other communications devices and extending
their threats to include the family members of those they are attacking. The
evidence of Fresia’s attacks corresponds with all of these details found in the
country documentation.
[17] Although
Fresia did not give specific evidence that her husband and son have been
attacked by members of the FARC, taking all the above evidence into
consideration, this was not a reasonable basis upon which to impute the
truthfulness of her entire story. A similar error was overturned by the Court
in Leung v. Canada (Minister of Employment & Immigration) (1994), 81 F.T.R. 303. There, the Court found the
Board had erred in deciding it was implausible that simple demonstrators would
be arrested before the actual organizers of the demonstrations, because in
doing so, the Board had ignored relevant evidence which supported the applicants'
narratives.
[18] At
paragraphs 14-16, the Court in Leung set out some guidance for plausibility
determinations:
Both divisions of
this Court have consistently held that the Board's decisions must be based on
the totality of the evidence contained in the Record…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.
Given this clear
obligation on the Board to base its decision on the totality of the evidence,
combined with the duty to justify its credibility findings, it must be assumed
that the Board's reasons contain a reasonably complete account of the facts
which form the basis of their decision. The Board will therefore err when it
fails to refer to relevant evidence which could potentially refute their
conclusions of implausibility.
[Emphasis added]
[19] In
my view, such an error occurred here when the Member both ignored how the
documentation supported the Applicants’ claim and failed to refer to the
evidence of the sister’s detainment which could have refuted his conclusions on
implausibility. It also seems highly unfair to adversely assess the
Applicants’ credibility based on actions not taken by the FARC against
their family members. Simply because threats made against Fresia’s husband and
son were not carried out, (and perhaps just not carried out as of yet) is not
reason to disbelieve such threats were made in the first place, particularly in
light of all the other supporting evidence.
ii) Man on
the farm after the farm was occupied by the FARC
[20] The
Member drew an adverse finding towards the Applicants’ credibility based on evidence
relating to their family farm. The Member’s reasons indicate that it was his
understanding that there is still someone on the farm, looking after the farm
and that person is paid by the Applicants’ father. In his view, this part of
the Applicants’ story contradicted credible documentary evidence which states
that the FARC has a pattern of forcibly displacing residents from their homes
in order to clear key drug and weapons transit routes. The Member felt it was “implausible
that the claimants, even if they still have deeds, would still keep someone on
the farm that has been taken over by the FARC, given the above-mentioned
operational FARC strategy.”
[21] In
my view, this finding by the Member was based on a mischaracterization of the
evidence that was before him. The Applicants were asked “Who is occupying the
farm today” and they responded, “The Guerrillas”. Later, the Member pressed
this point further asking, “[The FARC] is occupying it and nobody has removed
them from the farm have they?” Maria states:
They’re not completely stationed
there. What they do is that they move around the region. What they do is that
they enter the farm whenever they want to rest; they want to take coffee; they
want to eat. There’s someone there at the farm; he supposedly lived there to
take care of the farm but he’s just there
In
response to this the Member questioned:
Now based on our documents on
country conditions, in Colombia we understand that when the FARC takes over the
farm they make sure that even the people working on the farm leave the farm. So
how is it that you still have someone living on the farm and is still paid by
your father?
Maria
responded to the question, stating “That person was there only up to May 2006.
Currently we know nothing about this person”.
[22] The
situation with the family farm was discussed numerous times at the hearing and
with respect to several different issues: the payment of vacuna; the
FARC’s presence on the farm and the timeframes during which the family left the
farm. Although this evidence was somewhat confusing, taken in its totality, I
don’t believe it to be contradictory with known facts regarding the FARC’s
activities. The evidence was clear that the FARC’s “presence” on the
Applicants’ farm began with stealing cattle and/or equipment, and increased to occupying
the farm from time to time. As the FARC’s presence increased, the family
partially left the farm in November 2005 and then completely refrained from
going there at some point in 2006. The Applicants were not directly asked at
the hearing when their father left the farm, but Fresia’s statement says he
left in May 2006. Therefore, I do not find it unreasonable that there could also
be a worker on the farm up until that time as well.
iii) Fresia’s continuing
harassment after the FARC obtained her computer and after she left her employment
[23] Fresia
testified that the FARC took her computer during the January 15th incident, and
that the computer had information related to the program she was coordinating.
Her statement says that the FARC “took my laptop, and some documents with
personal information and also information about the programmes.” Fresia also
testified that she stopped working with the program on January 30, 2006, but
that despite this, the threatening phone calls continued and she was
subsequently harassed in person on June 15th.
[24]
The Member found it was not reasonable that the FARC would continue to
pursue Fresia, when she was no longer involved in the program, instead of
pursuing those that are running and managing the presidential program. The
Member stated in his reasons: “I find, based on [Fresia’s] testimony and PIF
narrative, the FARC has all the information they need from the laptop. I find
the claimant’s allegations not credible.”
[25]
My review of the tribunal record reveals that the Member’s finding with
respect to the FARC having “all the information they need from the laptop” is in
direct contrast to Fresia’s evidence at page 439 of the Tribunal record that
the computer did not have all the information relating to the program. Furthermore,
the Member’s finding demonstrates that he accepted that Fresia’s laptop was
stolen when she was attacked by the FARC, yet denies that a second attack is
plausible.
[26] In
my view, the fact that Fresia stopped working for the program and fact that the
FARC had possession of her computer does not remove her as a target for the
FARC, nor does it foreclose the possibility of there being additional
information the FARC might seek to obtain from her. Determinations on the
plausibility of who will be attacked and when must be must be made with
caution, as it is very difficult for Canadian courts to predict who terrorist
groups will target and for what level of involvement. As was stated in Ponce-Yon
v. Canada (Minister of Employment & Immigration) (1994), 73 F.T.R. 317 at para. 9:
The common thread running through the
jurisprudence is that inferences based on the degree of a claimant's political
involvement are rarely reasonable, particularly in situations where it is
acknowledged that the claimant has indeed been persecuted (Wong, Butucariu and
Gonzalez) or where the agent of persecution is known to target all members of a
particular group, regardless of the extent of their political involvement
(Giron and Hilo).
[27] Documentation on Colombia indicates that the FARC has a
presence in virtually all of the nation’s 32 departments and employs a
sophisticated communications and investigation system for tracking people. Fresia’s
role as an environmental/agricultural activist makes her a likely target for
the FARC, due to the FARC’s financial ties to the illegal drug trade; and once
a citizen of Colombia is a target for the FARC, it is very difficult (if not
impossible) to ever fully escape this mark. The March 2005 UNHRC Report on
International Protection Considerations Regarding Colombian Asylum-Seekers and
Refugees notes that once a person has been identified as a potential victim,
the possibility of ever obtaining protection in the future is limited.
(Official Tribunal Record page 151) Taking this into account, it is
unreasonable to draw negative conclusions on the plausibility of the FARC
continuing to target Fresia – particularly because, even after she had
terminated her employment, there was still the matter of the outstanding vacuna
the FARC was demanding.
[28] Overall,
I find that the Member’s findings with respect to his perceived
implausibilities in the evidence do not appear to take into consideration all
of the evidence before him, and even appear, at times, to directly contradict
evidence that was before him. My review of the Tribunal record reveals that the
Applicants’ claims are supported by the country documentation and no
inconsistencies exist (of such a magnitude) that would warrant completely
negating the Applicants’ credibility.
B. Lack of subjective fear due to delay in departure
[29] The
Member also erred in his finding that the Applicants failed to demonstrate subjective
fear because they did not depart Colombia until July 2006, even though the FARC had been
demanding payment for the taxes on the farm since long before then and had directly
confronted Fresia as early as January 2006. At the Hearing the Member asked
Fresia: “Given all that had been happening to you since January and perhaps
before, why hadn’t you left earlier?” She responded: “Because we were expecting
that the situation would improve. However, considering what occurred on June 15th,
we had come to the decision to abandon the country; that it would be best.”
[30] The
Member’s reasons state that he found this response contradictory to documentary
evidence on Colombia country conditions that describes an increase in
terrorist activities as of 2002. After setting out various statistics regarding
the FARC’s revenues from kidnapping and the drug trade, the Member stated:
I find that the situation was not
improving, but getting worse, as stated above. Given the above-mentioned FARC
activities, I find the claimant’s response not reasonable, given the importance
of extortion to the FARC, as stated, and the revenue derived from the illicit
growth, whose programme the principal claimant alleges was involved with, and,
yet neither the principal claimant nor her family were harmed or kidnapped.
[31] For
their part, the Applicants submit that there is no issue of “delay”, but that
instead; they were victims of multiple incidents of harassment that culminated
with the June 14, 2006 incident that ultimately forced them to flee their
country. As culminating incidents necessarily take time to culminate, the issue
of delay cannot work to prevent a successful claim for protection. For this
argument they rely on the decision of Justice Elizabeth Heneghan in Ibrahimov
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1185 where
she stated at para. 19:
…when a claim is based on a number of
discriminatory or harassing incidents which culminate in an event which forces
a person to leave his country, then the issue of delay cannot be used as a
significant factor to doubt that person's subjective fear of persecution.
Cumulative acts which may amount to persecution will take time to occur. If a
person's claim is actually based on several incidents which occur over time,
the cumulative effects of which may amount to persecution, then looking to the
beginning of such discriminatory or harassing treatment and comparing that to
the date on which a person leaves the country to justify rejection of the claim
on the basis of delay, undermines the very idea of cumulative persecution.
[32] I
am persuaded that this reasoning applies to the Applicants in the present case.
From the evidence it appears that, although the Applicants were subject to
numerous harassing phone calls, the situation truly worsened in the last six
months prior to their departure; and the final “culminating” incident occurred
on June 15, 2006 – only weeks prior to the date that the Applicants fled
Colombia. I question the appropriateness of the Member’s finding that the
Applicants’ response that “they were expecting the situation would improve” was
unreasonable. Surely, one cannot completely equate objective conditions
describing a country’s overall worsening situation, with one person’s decision to
remain in their home a few months longer based on a hope that their personal
situation would improve.
[33] Further,
the law is clear that a person’s delay in making a claim, while relevant, will
not usually be a decisive factor in itself, Huerta v. Canada (Minister of
Employment & Immigration) (1993), 157 N.R. 225 (C.A.) at page
227. In the present case, the Member stated:
I find, on a balance of
probabilities, that if the claimants had been targeted because of what they
allege, they would have left earlier; therefore, I find the claimant’s delay
indicative of the lack of subjective fear.
Although
the Member’s language is careful to say the delay only indicated a lack
of subjective fear, I find that this determination was essentially the basis
for his finding on subjective fear. Further, his determination on subjective
fear was reinforced by his adverse findings on credibility which, for the
reasons I have set out above, were unreasonable.
[34] Due
to my finding that the Member’s determinations with respect to the Applicants’
credibility were unreasonable, a new panel will have the opportunity to determine
whether the acts of harassment suffered by the Applicants constitute
persecution. It is clear that persecution can arise from a series of acts of
harassment, if the acts are serious enough, Ovakimoglu v. Canada
(Minister of Employment & Immigration) (1983), 52 N.R. 67 at p. 69 (C.A.). From the evidence in the present case, it would
seem that this level of seriousness has been met. The Applicant, Fresia, was
detained, threatened and physically assaulted and both she and her sister
received numerous threatening phone calls.
[35] For the reasons above, I
find that the Member made unreasonable findings of credibility based on his
failure to consider the totality of the evidence. I would allow the
application, and return the case for a hearing before a differently constituted
Panel.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this matter be returned for reassessment by a
differently constituted Panel of the Refugee Protection Division.
“Orville Frenette”
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