Date: 20080328
Docket: IMM-2976-07
Citation: 2008 FC 401
Ottawa, Ontario, March 28,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ROSMIRA GERARDO DE VON
JEFFREY VON
MEE LAY VON GERARDO
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Rosmira
Gerardo De Von, her son Jeffrey Von, and her daughter Mee Lay Von Gerardo, are
citizens of Colombia who claimed refugee protection, although Jeffrey withdrew
his claim before it was heard. Ms. Gerardo De Von and her daughter claimed to
have a well-founded fear of persecution from the Fuerzas Armadas
Revolucionarias de Colombia (FARC). Their claims were dismissed by the Refugee
Protection Division of the Immigration and Refugee Board (RPD) because it found
that their testimony was not credible and that, in any event, they have a
viable internal flight alternative in Bogota.
[2] This
application for judicial review of that decision is dismissed because the RPD
made no reviewable error in coming to those conclusions.
The Nature of the Applicants’
Claim
[3] Ms.
Gerardo De Von and her husband owned and operated a restaurant in Cartagena, Colombia.
[4] In
December of 2000, Ms. Gerardo De Von’s husband allegedly received threats and
extortion demands from three men, who identified themselves as members of the
FARC. Neither Ms. Gerardo De Von nor her husband reported these threats to the
police because they believed that the FARC had informants within the police
forces. Ms. Gerardo De Von and her husband decided to leave Colombia for the United
States.
[5] Ms.
Gerardo De Von and her husband have three children: Jeffrey, Elaine, and Mee
Lay. The family left Colombia for Miami, Florida, departing as follows:
·
Jeffrey and Elaine left on January 18, 2001;
·
Mee Lay left on February 1, 2001, after renewing her passport on
January 23, 2001;
·
Ms. Gerardo De Von left on February 16, 2001; and
·
Ms. Gerardo De Von’s husband left in March of 2001, after
collecting money owed to him by customers.
[6] The
family sought asylum in the United States. On January 17, 2006, their claims
were denied on the basis of an “adverse credibility finding.”
[7] On
October 3, 2006, Ms. Gerardo De Von, her daughter, Mee Lay, and her son,
Jeffrey, travelled to Canada. They later claimed refugee protection. Ms.
Gerardo De Von’s husband remained in the United States. He has since been
deported to Colombia.
The Decision of the RPD
[8] On
the issue of credibility, the RPD expressed its concerns regarding five aspects
of the applicants’ claim:
- The RPD noted the delay in
leaving Colombia following the alleged threats by the FARC. The RPD
pointed specifically to the two-month delay of Ms. Gerardo De Von’s
husband, observing that it did not stand to reason that he would run the
risk of being killed so that he could collect money from his customers.
Given that the FARC had shown that they were watching the family, they
would have taken notice that his wife and children had left Colombia between
January 18 and February 16, 2001. The RPD concluded that this delay
belied the applicants’ subjective fear.
- The RPD noted the return of Ms.
Gerardo De Von’s son, Jeffrey, to Colombia and his approximate one-month
stay there. While the RPD acknowledged that Ms. Gerardo De Von did
not want him to go, the RPD questioned why her husband would not stop
him. Instead, her husband paid for the trip. The RPD concluded that
Jeffrey’s safe return cast serious doubt on the applicants’ claim that the
FARC would kill them upon their return to Colombia.
- The RPD noted the two-week stay
of Ms. Gerardo De Von’s husband in Colombia following his deportation from
the United States. Given Ms. Gerardo De Von’s testimony that her husband
was of Chinese ancestry and therefore easily recognizable, the RPD noted
that the likelihood of the FARC finding out about his return was even
higher, despite the short duration of his stay. The RPD concluded that
the absence of any evidence that the FARC contacted, or took action
against, Ms. Gerardo De Von’s husband cast doubt on whether there was
cause for the applicants to be afraid and on whether the FARC was still
interested in them.
- The RPD noted the contradiction
between the narrative contained in Ms. Gerardo De Von’s personal
information form, her point of entry interview, and her oral testimony.
Ms. Gerardo De Von’s personal information form and her port of entry interview
were silent as to whether her husband had paid any money to the FARC and
indicated only that he had refused the FARC’s demands; however, she
testified that her husband had in fact made such payments in January and
February of 2001. The RPD concluded that this contradiction added to the
incredulity of the applicants’ claim.
- The RPD noted the fact that the
applicants’ asylum claim in the United States had been rejected on the
basis of an “adverse credibility finding” added to its credibility
concerns. Ms. Gerardo De Von’s disposal of the materials relating to that
claim was viewed with suspicion by the RPD, who observed that the
materials may have contained information detrimental to the claim being
made in Canada. The RPD concluded that, while not determinative of the
issue of credibility, the earlier negative finding gave an indication of
the applicants’ lack of credibility.
[9] Taking
all of the above matters together, the RPD found that the applicants’ claim was
not credible.
[10] “Even
if credibility [was] not an issue,” the RPD went on to consider the
availability of an internal flight alternative. The RPD found that there was a
viable internal flight alternative in Bogota, noting that there had been prior,
uneventful re-availment experiences by other family members and that six years
had passed since the applicants left Colombia. After noting the size of Bogota
and its distance from the applicants’ home in Cartagena, the RPD concluded that
there was no serious possibility that the applicants would be discovered. The
RPD did note that reasonable precautions would have to be taken by the
applicants when informing relatives of their change in location. The RPD also
noted that the applicants had experience in running a business and that it was
reasonable to expect that Ms. Gerardo De Von’s husband would return to the
family as he was without status in Venezuela.
The Standard of Review
[11] The
recent jurisprudence of this Court was to the effect that the RPD's conclusions
on matters of fact, including findings of credibility and the existence of an
internal flight alternative, were reviewable on the standard of patent
unreasonableness.
[12] Counsel
were not prepared to address at the hearing the impact of the Supreme Court of
Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9.
Specifically, they were asked to address whether the appropriate standard of
review to be applied to the RPD’s findings of fact remains as set out in
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c.
F-7, or is reasonableness, or whether the two standards are similar in this
context.
[13] After
hearing argument with respect to the substantive issues, I advised counsel that
it was not necessary for them to provide written submissions on the standard of
review. I am satisfied that the RPD's findings withstand scrutiny on any
standard of review. It is therefore not necessary to further consider the
issue of standard of review.
The RPD's Credibility
Findings
[14] In
my view, the RPD articulated clear reasons for its findings, which were based
upon the evidence. Specifically:
1.
The threat said to be made by the FARC was that, if Ms. Gerardo De Von's
husband failed to pay a certain amount of money to the FARC, he or other family
members would be killed. Given the nature of the threat, it was open to the
RPD to draw a negative inference from the fact that Ms. Gerardo De Von's
husband remained in Cartagena for two months collecting accounts.
2.
Ms. Gerardo De Von’s son returned to Colombia for approximately 6 weeks,
during which time he stayed with family members and encountered no difficulty.
Given the length of the son’s stay with family members and the lack of evidence
that he was hiding during that time, the RPD's conclusion that this sojourn
cast doubt on the validity of the claim that the FARC remained interested in
the family was reasonable.
3.
The evidence was that, for one of the two weeks following his deportation
to Colombia, Ms. Gerardo De Von's husband returned to Cartagena. Ms. Gerardo
De Von and her daughter both testified that he was physically very recognizable
and that he had an uncommon surname. On the evidence, it was not unreasonable
for the RPD to draw a negative inference from that stay.
4.
The failure of Ms. Gerardo De Von to state in her personal information form
that her husband had made payments to the FARC was a material omission. When confronted
with this omission, Ms. Gerardo De Von's testimony was vague. The RPD's
conclusion that this harmed Ms. Gerardo De Von's credibility was
reasonable.
5.
When further questioned about why she disposed of the documents related
to the asylum claim in the United States, Ms. Gerardo De Von conceded that her
husband had given untrue evidence in that proceeding. This reasonably gave
rise to the RPD's concerns.
[15] I
conclude that the RPD properly articulated the reasons for its credibility
findings. The RPD's ultimate conclusion as to credibility cannot be said to be
outside the range of acceptable outcomes that are defensible on the evidence
before the RPD. The decision was, therefore, reasonable.
The Finding of an Internal
Flight Alternative
[16] Because
the RPD found no risk to the applicants upon their return to Colombia, and
therefore no well-founded fear of persecution, it is not necessary to consider
its finding that an internal flight alternative existed in Bogota. However,
for completeness, I make the following brief comments.
[17] The
applicants submit that the documentary evidence establishes that there is no
viable internal flight alternative in Colombia.
[18] As
conceded by the Minister, the documentary evidence presents a mixed picture. A
request for information document contains the following information:
[T]he
guerrillas and paramilitary groups often employ highly sophisticated data bases
and computer networks. An individual who is threatened in one area of the
country will not be notably safer by relocating to another. Depending on the
nature and reasons for the threat, the victims can be pursued relentlessly.
There are countless stories of men and women receiving threats in Bogotá or
Medellín after relocating from another area and attempting to live anonymously
in the big city. Many have been killed after seeking refuge in another part of
the country. There are also cases of people leaving the country for a period
of months or years, and then being killed after returning. Memories are long
and data is systematically recorded and analysed. [footnotes omitted and
emphasis added]
[19] By
contrast, the same document also states:
[R]elocating
elsewhere in Colombia can usually bring some increased safety,
unless one is a national figure […]
While both
the FARC and AUC do have the capacity to act throughout Colombia,
the “overwhelming majority of threatened and displaced persons are of limited
interest to [these groups] once they stop their community/political activities
and leave” their region […]
For [refugee]
applicant[s] to use the claim that they cannot flee internally, [they] must
satisfy the interviewing officer that they have a stature and role in the
conflict that would justify a high level of motivation in FARC or the AUC to
follow them across a large country […]
[T]he
likelihood of relocation ending the threat posed by an armed group is dependent
on two principal factors. First, one must consider the reach of the armed
group in question, with the FARC for example having a significantly higher
capacity to act throughout the country than the ELN. Second, one must assess
the reasons why an individual is being sought. If, for example, the targeted
individual is a witness in a court case and can identify an important member of
an armed group, every effort will be made to locate and kill this person,
regardless of where he or she may be hiding. However, even in instances
where there is less motivation to track down threatened individuals, […] they
would still have to relocate to a new residence if they live in Bogotá, or
leave their hometown if they reside elsewhere. [footnotes omitted and
emphasis added]
[20] Based
upon the latter evidence, and its finding that the FARC is no longer interested
in the applicants, the RPD's conclusion that an internal flight alternative
existed was grounded in the evidence and was not unreasonable.
[21] However,
the RPD's analysis of this issue was sparse. Had this been the only basis for
dismissing the applicants’ claim, the RPD's analysis may well not have
satisfied the requirement that the decision be properly justified.
Conclusion
[22] For
these reasons, the application for judicial review will be dismissed. Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor
R. Dawson”
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