Docket: IMM-4677-13
Citation:
2014 FC 1099
Toronto, Ontario, November 20, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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MARIA DEL PILAR BRAVO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Maria del Pilar Bravo’s
application for refugee protection was dismissed by the Refugee Protection
Division of the Immigration and Refugee Board on credibility grounds. The Board
also found that her delay in seeking refugee protection in Canada demonstrated that she lacked a subjective fear of persecution.
[2]
At the conclusion of the hearing, I advised the
parties that I would be dismissing the application for judicial review. These
are my reasons for coming to that decision.
I.
The Mootness Issue
[3]
Before considering the merits of this
application, it is first necessary to address the respondent’s contention that
this application for judicial review has become moot because Ms. del Pilar
is no longer in Canada.
[4]
Ms. del Pilar was removed from Canada in February of 2014, after her motion for a stay of her removal was dismissed by
this Court. The respondent contends that because Ms. del Pilar is no
longer “outside her country of her nationality” or
“former habitual residence”, she cannot meet the
refugee definition contained in section 96 of Immigration and Refugee
Protection Act, S.C. 2001, c. 27. Nor could Ms. del Pilar be
found to be a person in need of protection for the purposes of section 97 of
the Act as she is not a “person in Canada”. As a consequence, the respondent says that Ms. del Pilar could not benefit
from a re‑determination of her refugee claim and her application for
judicial review is thus moot.
[5]
Because this argument was raised for the first
time in the respondent’s further memorandum of fact and law, Ms. del Pilar
did not have a chance to address it in writing, and asked at the commencement
of the hearing that she be given an opportunity to provide written submissions on
this issue. Both parties proceeded, however, to make fulsome submissions on the
merits of the application.
[6]
Having now heard the parties in relation to
underlying application, I have concluded that the application should be
dismissed on its merits. In the circumstances, it would not, in my view, be an
efficient use of scarce judicial resources to adjourn the matter for further
submissions on the question of mootness.
II.
The Reasonableness of the Board’s Decision
[7]
The Board had numerous reasons for disbelieving Ms. del Pilar’s
claim that the Revolutionary Armed Forces of Colombia (FARC) had threatened her
because she taught extra‑curricular programs designed to prevent students
being recruited by FARC. Even if I accept Ms. del Pilar’s arguments that the
Board erred in failing to consider her brother’s first-hand evidence of efforts
taken to protect her, and in finding that her evidence contained material
inconsistencies as to the agents of persecution, the Board nevertheless had a
number of other reasons for doubting her credibility which were reasonably open
to it on the record before it.
[8]
One such reason was Ms. del Pilar’s
failure to mention at the port of entry that FARC members had physically
threatened her at gunpoint. When asked in her refugee intake form why she was
seeking protection in Canada, Ms. del Pilar wrote that “I am being the object of threats. They were telephone threats
where they tell me I should disappear away from the city and my place of work”.
[9]
In contrast, Ms. del Pilar stated in
her Personal Information Form and oral testimony that on February 12, 2011,
eight FARC members entered her workshop, threatening her at gunpoint, telling
her she was a political objective. They reportedly
told her to stop leading workshops or they would make sure that she did.
[10]
Citing this Court’s decision in Argueta v. Canada (Minister of Citizenship & Immigration), 2011 FC 1146 at paras. 33-34, 4
Imm. L.R. (4th) 333, Ms. del Pilar submits that a refugee intake form
is not intended to provide all the details of the claim, and that members must
be careful to distinguish between cases where the claimant contradicts his or
her initial statement, and cases such as this where the claimant simply added
details regarding her claim.
[11]
I do not accept this submission. Ms. del Pilar’s
refugee intake form states that she was the object of threats, which she
identifies as “telephone threats”. Her later claim
to have been threatened at gunpoint by eight FARC members contradicted her
earlier description of the nature of the threats. It was, moreover, a material inconsistency
- one that went to the very heart of her claim. The Board’s finding that this inconsistency
undermined Ms. del Pilar’s credibility was one that was reasonably
open to it.
[12]
Similarly, it was entirely reasonable for the
Board to conclude that a letter corroborating the February 12, 2011 incident,
purportedly from a colleague of Ms. del Pilar’s named “Diana”, was a fraudulent document. According to Ms. del Pilar,
she had received the signed letter from Diana by mail. That being the case, Ms. del Pilar
was unable to explain how it was that she possessed both a signed copy of the
letter and an unsigned version of the same letter.
[13]
Ms. del Pilar argues that the Board
failed to accept her counsel’s suggestion that her colleague may have first
sent her an unsigned draft of the letter by email, followed by a hard copy sent
by mail. The Board did, however, consider counsel’s suggestion and rejected it.
Given that counsel’s suggestion was entirely speculative, and was unsupported
by any evidence from Ms. del Pilar herself, it was reasonably open to
the Board to find that the document was not legitimate.
[14]
The Board accepted that Ms. del Pilar
had worked as a teacher, and did not discount letters provided by her employer
just because of differences in the letterhead used in the two letters. It was,
however, entirely reasonable for the Board to find it surprising that letters
from Ms. del Pilar’s employer documenting her employment as a teacher
made no mention of the threats that she had suffered at the hands of FARC. This
was especially so given Ms. del Pilar’s assertion that she had told
the author of one of the letters about the threats.
[15]
Nor was it unreasonable for the Board to find it
concerning that Ms. del Pilar’s evidence contained inconsistencies as to how
frequently she participated in the extra-curricular activities that were the
source of her problems.
[16]
My finding that many of the Board’s negative
credibility findings regarding Ms. del Pilar’s claim were reasonable
provides sufficient basis for concluding that the decision is one that falls
within the range of possible acceptable outcomes which are defensible in light
of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at
para. 47, [2008] 1 S.C.R. 190 and Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at para. 59, [2009] 1 S.C.R. 339. In the
interests of completeness, however, I will also briefly address the Board’s
finding regarding the issue of subjective fear.
III.
Lack of Subjective Fear
[17]
The Board observed that Ms. del Pilar
left Colombia and travelled to the United States, where she remained for more
than three months before coming to Canada and claiming refugee protection. The
Board noted that Ms. del Pilar’s two children live in Canada, and acknowledged that it was not unreasonable for a mother to wish to reunite with
her daughters. That said, the Board also found that someone genuinely fleeing a
country in fear of her life would have claimed protection at the first
opportunity, and Ms. del Pilar’s failure to do so was indicative of a
lack of subjective fear on her part.
[18]
Ms. del Pilar argues that these
findings were internally inconsistent because the Board accepted that it was
not unreasonable for a mother to wish to reunite with her daughters while at
the same time finding that it was unreasonable for her to wait until she was in
Canada before seeking refugee protection.
[19]
I am not persuaded that the Board’s findings
were internally inconsistent. This was not a case where a person transited
briefly through one country, waiting to make a refugee claim in Canada where he or she had family. Ms. del Pilar spent more than three months in
the United States, without taking any steps to seek protection. A fair reading
of the Board’s reasons discloses that its concern was the lack of any apparent
sense of urgency on the part of Ms. del Pilar that belied her claim
to fear for her life.
IV.
Conclusion
[20]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case does not raise a
question for certification.
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