Docket: IMM-5417-15
Citation:
2016 FC 656
Ottawa, Ontario, June 14, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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JEAN ALEAXANDER ELEJALDE ALVAREZ CAMILA LOPEZ BETANCOURT
GABRIELA ELEJALDE BETANCOURT
JUANITA ELEJALDE BETANCOURT
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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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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the RPD]
dated November 3, 2015, wherein it was determined that the Applicants are not
Convention Refugees or persons in need of protection under section 96 or 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
The Applicants are Mr. Jean Alexander Elejalde
Alvarez [the Principal Applicant], his spouse, Camila Lopez Betancourt, and
their two minor children, Gabriela Elejalde Betancourt and Juanita Elejalde
Betancourt. They are all citizens of Colombia. The allegations giving rise to
their claim for refugee protection relate to fear of persons who were seeking
access to the estate of a relative of the Principal Applicant. In its decision,
the RPD recited these allegations as follows.
[4]
On August 19, 2008, Mr. Ricardo Leon was
murdered in Mexico. He was the father of Estefanye Leon Alvarez [Estefanye] who
is the cousin of the Principal Applicant. On October 7, 2008, Estefanye granted
a power of attorney to her grandmother and her aunt in Mexico to represent her
interests in the estate of her deceased father. However, on April 3, 2009, she
revoked the power of attorney, following which she began receiving telephone
threats, from unknown persons, that her grandmother and her half-brothers would
be harmed if she continued to claim her inheritance in her father’s estate.
Estefanye and her family moved on April 21, 2009, and she acted to file a
complaint at the State prosecutor’s office.
[5]
On May 4, 2009, the Applicants received an
unsigned condolence letter which they understood to be a threat, as no one had
died recently in their family. The Principal Applicant also claims to have
received a phone call on May 15, 2009, in which he was told that, if Estefanye
did not withdraw her claim to her father’s estate, he and his family would be
killed. On May 16, 2009, the Principal Applicant and his wife went to file a
complaint with the police, and on May 18, 2009, they went to the State
prosecutor’s office.
[6]
On May 20, 2009, the Principal Applicant received
a threat against his daughters which made reference to their school. As this
gave the Applicants reason to believe that the children would no longer be safe
at school, the Principal Applicant sent his wife and children to live at his
mother-in-law’s house. On June 2, 2009, the Principal Applicant had an
interview at the State prosecutor’s office. During this interview, he learned
that Mr. Leon had links with the drug cartels in Mexico and the guerilla in
Colombia. However, the Applicants were unable to provide the investigators with
the names of the people making the threats and, without the names of the people
harassing the family, little could be done to protect them.
[7]
In June 2009, the Principal Applicant made an
asylum claim at the Canadian High Commission in Colombia.
[8]
Having then received no threats for
approximately one year, the family moved back to the grandmother’s house.
However, as the telephone threats resumed twenty days later, the Applicants
moved again in July 2010. The landlord at the new location advised the
Principal Applicant that people had come looking for him. As a result, the
Applicants moved back to the Principal Applicant’s mother-in-law’s house. Seven
months later, the Applicants moved again, but the telephone threats continued.
[9]
On January 7, 2015, the Applicants received a
letter from the State prosecutor’s office indicating that the investigation
into their complaint had been closed in October 2014. A few days later, the
Applicants received a pamphlet with the logo of a paramilitary group, Las
Aguilas Negras Bloque Capital. The pamphlet indicated that the Applicants had
twenty days to leave the area, after which the paramilitary group would make
them disappear. The Applicants moved back to the mother-in-law’s house, and the
Principal Applicant called his own mother in Canada and asked her to purchase
plane tickets for the whole family. On February 15, 2015, the Applicants fled
to the United States, and on March 4, 2015 they arrived at the Canadian border
and made a claim for refugee protection.
II.
Impugned Decision
[10]
The RPD made various adverse findings as to the
Applicants’ credibility. Specifically, the RPD found the Applicants were not
credible because of inconsistencies in their evidence and certain actions which
were held to be incompatible with their alleged fear. These findings included:
A.
Inconsistencies in the evidence as to the dates
and chronology of events that were central to the claim, including
inconsistencies in the locations and chronology of the Applicants’ residences;
B.
Inconsistencies between the Applicants’ own
evidence and Estefanye’s evidence emanating from the State prosecutor’s office
that was submitted in support of the Applicants’ claim;
C.
Failure of the Applicants to provide a
satisfactory explanation as to why they continued to send their children to
school following the threats received against them;
D.
Failure of the Applicants to leave Colombia
until 2015, despite seeking asylum in 2009; and
E.
The Applicants’ decision to remain in Colombia
and plan in 2014 to travel to the United States for tourism purposes rather
than for refuge.
[11]
The RPD also considered the documents provided
by the Applicants to corroborate their claim and held that the documents did
not have sufficient probative value to restore their credibility. The RPD made
the following findings with respect to these documents:
A.
Letters containing written threats bore no
signatures and did not bear sufficient security features to be deemed reliable.
Also, courier slips provided to the RPD could not be linked to these documents;
B.
An email sent by Estefanye warning that the
Applicants were in danger did not include her email address, an omission that
the Applicants could not explain; and
C.
Documents from the State prosecutor, while
perhaps genuine, did not confirm the veracity of the allegations and contained
too little information to substantiate these allegations. There were no details
as to the circumstances of the phone threats and no specific mention of the
written threats received by the Applicants just days earlier.
[12]
The RPD rejected the Applicants’ claim after
concluding they had not established there exists a serious possibility of
persecution on a Convention ground or that, on a balance of probabilities, they
would be personally subjected to a danger of torture or face a risk to their
lives or a risk of cruel and unusual treatment or punishment upon return to
Colombia.
III.
Issues and Standard of Review
[13]
The Applicant raises the following issues for
the Court’s consideration:
A.
Did the RPD err by making a finding that the
written threats bear no signatures and do not bear sufficient security features
to be deemed reliable when the RPD had no evidence to prove that a reliable
threat must have those two features?
B.
Did the RPD err by elevating the standard of
proof to conclusive proof or proof on the balance of probabilities, as opposed
to proof of the serious possibility of persecution or harm?
C.
Did the RPD err by failing to provide adequate
reasons for its findings?
D.
Did the RPD err by making unreasonable findings?
[14]
The parties agree that the standard of review
applicable to the issues raised by the Applicant is reasonableness, the
Applicants citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47. I
agree that this is the applicable standard.
IV.
Analysis
[15]
I will consider the issues identified by the
Applicants as raised in the arguments in their Memorandum of Fact and Law,
which the Applicants followed very closely in oral argument at the hearing of
this application.
A.
Discrepancy in Date of Mr. Leon’s Death and Date
of Threats
[16]
In the Principal Applicant’s Port of Entry
declaration, he stated that his cousin Estefanye’s father (Mr. Leon) died in
2007 and that he started receiving threats since that year. However, he stated
in his Basis of Claim [BOC] form that his cousin’s father died in August 2008
and that he started receiving threats since May 2009, the following year. To
explain the discrepancy in the dates, the Principal Applicant stated that he
did not know the man at the border, that he was nervous and scared, and that he
was bad with dates.
[17]
The Applicants’ position is that the RPD made a
reviewable error by failing to consider the Principal Applicant’s explanation
properly. It did not examine the issues that the Principal Applicant was scared
and nervous and that he was bad with dates. Rather, the RPD simply concluded
that the explanation did not explain why the Principal Applicant declared that
the threats started the same year as the murder, especially when one considers
that he is a university educated man.
[18]
The Applicants also submit that it was improper
for the RPD to consider the fact that the Principal Applicant was a university
educated man in making its finding on credibility. They argue the RPD failed to
provide adequate reasons to support its finding that the Principal Applicant’s
explanation did not suffice to justify making contradictory statements at the
border. The RPD also did not explain why, on the one hand, it accepted the
Principal Applicant’s explanation that he was bad with dates as the cause of a
contradiction in remembering the exact duration of his stay at his
mother-in-law’s house but, on the other hand, it rejected the same explanation
for making mistakes in his statement at the port of entry.
[19]
The Respondent’s position, in relation to all
the Applicants’ arguments challenging the RPD’s credibility findings, is that
such findings should be afforded significant deference (see Rahal v Canada
(Citizenship and Immigration), 2012 FC 319 at paras 42-43). Relying on Toma
v Canada (Citizenship and Immigration), 2014 FC 121 at paras 9-10, the
Respondent refers to findings of credibility as being at the “heartland of the Board’s jurisdiction” and submits
that the RPD is best suited to assess the evidence and determine credibility
based on its expertise and because it hears claimants first hand.
[20]
The Respondent submits that, in this case, the
RPD found inconsistences in the Applicants’ evidence (and, as discussed below,
acts that were inconsistent with the Applicants’ alleged fear) and that, while
the RPD reasonably gave the Applicants an opportunity to explain these
inconsistencies, they were unable to give a satisfactory explanation. The
Respondent argues these inconsistencies were significant both in their number
and importance to the claim, and the RPD reasonably found that they were
sufficient to undermine the Applicants’ credibility.
[21]
Returning to the inconsistencies in the
Applicants’ evidence as to the date of Mr. Leon’s death and when the threats
began, I find nothing unreasonable in the RPD’s finding. While the Principal
Applicant offered the explanation that he was nervous, scared and bad with
dates, the RPD’s reasons indicate that it considered this explanation but was
not satisfied with it. This was because the inconsistency in the Principal
Applicant’s evidence related not only to the date of Mr. Leon’s death and when
the threats began, but whether those two events were even in the same year.
[22]
The reasons indicate that this finding was
enhanced by the fact that the Principal Applicant is a university educated man.
While I would not consider the Principal Applicant’s level of education to be
of significant relevance to his skill in remembering dates, I cannot conclude
it to be irrelevant. Moreover, the RPD’s finding did not turn on this fact
alone. I do not consider the reference to the Principal Applicant’s education
to undermine the reasonableness of this finding.
[23]
The RPD’s reasoning, that the Principal
Applicant’s credibility was undermined because of the inconsistencies as to
whether Mr. Leon’s death and the beginning of the threats were even in the same
year, also distinguishes this finding from the RPD’s willingness to overlook
the contradictions in his evidence as to how long the family had stayed at his
mother-in-law’s house.
B.
Discrepancy in Residences
[24]
At the hearing, the Principal Applicant was
asked to list all the places where he moved with his family in order to protect
themselves. In doing so, he changed the order of locations which he previously
listed in another document, the IMM 5669 form. When asked to explain the
inconsistency, the Principal Applicant answered that this was confusing to him
because these were all places that belonged to relatives that they would visit
from time to time. The RPD stated that it was not satisfied with these answers
and noted that the adult Applicants are both university educated people who
took time to fill in the IMM 5669 forms together in the United States prior to
arriving at the Canadian border.
[25]
The Applicants argue that a reasonable
explanation was given when the Principal Applicant said this was his mistake.
Their position is that the RPD provided no reasons for not accepting his
explanation and that its reasoning that the adult Applicants are both
university educated people and, therefore, should not have made this mistake is
unreasonable and indefensible. They take the same position with respect to the
RPD’s finding that the Applicants took time to fill in the IMM 5669 forms
together and, therefore, should not have made mistakes. The Applicants also
contend the RPD failed to consider the relevant fact that the Applicants were
fleeing from persecution, were not in a normal state of mind and were relying
on their memory when completing the forms.
[26]
I find no basis for concluding that this finding
is unreasonable. The RPD referred to the Principal Applicant’s explanation for
the inconsistency in his evidence as to the order in which his family moved to
various locations and was not satisfied with that explanation. I interpret the
RPD’s reasoning, relating to the Applicants’ completion of the IMM 5669 forms
together while in the United States, to be that they had the time to complete
these forms accurately. I find neither that reason, nor the reference to the
Applicants’ level of education, to take the RPD’s credibility finding outside
the range of acceptable outcomes.
C.
Act of Entitlement to Victims
[27]
In the RPD’s decision, it was pointed out that
the Applicants filed a document titled “Act of
Entitlement to Victims” which emanated from the State prosecutor’s
office. The document was written by Estefanye who declared that it was on July
7, 2008 that she gave a power of attorney to her aunt in relation to her
interest in her father’s estate. The RPD observed that the power of attorney
was given before Mr. Leon’s death and pointed out that the recipients of the
power of attorney were different from those alleged by the Principal Applicant
in his BOC, which referred to the power of attorney being given to both her
aunt and her grandmother. On this basis, the RPD found that the document failed
to corroborate the Applicants’ allegations.
[28]
The Applicants submit that the Act of
Entitlement to Victims should not affect the Principal Applicant’s credibility
because he is not the author of the document and it does not have any direct
link to his fear of persecution.
[29]
Again, I find no error in the RPD’s decision on
this point. The RPD did not find the Principal Applicant’s credibility to be
undermined as a result of this document. Rather, it recognized that the
declaration to the State prosecutor’s office was not authored by the Principal
Applicant but concluded that, because of the discrepancies with his evidence,
it did not corroborate the existence of threats against the Applicants.
Moreover, the evidence surrounding the power of attorney was not peripheral, as
the Applicants’ allegations are derived from events that relate directly to the
power of attorney related to Mr. Leon’s estate.
D.
Acts Incompatible with Alleged Fear
[30]
The Applicants also take issue with the RPD’s
findings on actions which it viewed to be incompatible with their alleged fear,
including: the minor Applicants continuing to attend school when the people who
threatened them knew the location of the school; the Applicants waiting from
2009 to 2015 to leave Colombia; and the Applicants asking for passports and
American visas in 2014 with a view to travelling for tourism purposes.
[31]
The Applicants refer to the explanations they
provided to the RPD in relation to the above findings. The RPD acknowledged the
fact that they moved four times to protect themselves, that the children missed
school because of the threats, and that the last school they attended had
extensive security measures in place. The children finally stopped going to
school three months prior to their departure from Colombia. In relation to the
fact that they did not leave Colombia until 2015, the Applicants note that it
was explained they did not have much money to move prior to 2015 and left once
they found out the paramilitary was involved. They also refer to the fact that
they asked for protection from the Canadian High Commission in 2009. Finally,
as to why they asked for American visas in 2014 if they had no money to travel,
the Applicants state that it was explained they wanted to take advantage of the
American government’s decision to issue ten year visas.
[32]
The reasons indicate that the RPD considered
these explanations but was not satisfied with them. The RPD rejected the
explanation concerning the attendance at school, as it concluded it was
incompatible with their alleged fear for the Applicants to move several times
to avoid their assailants but continue to drive their children each day to a
school that the assailants had identified. It rejected the explanation that the
Applicants did not have money to leave Columbia prior to 2015, given that they
eventually left using money provided by the Principal Applicant’s mother, which
they did not request earlier. The RPD also did not consider the decision to
obtain tourist visas but remain in their country to be consistent with their
alleged fear. Given the deference to be afforded to the RPD, I find no basis to
interfere with any of this reasoning.
E.
Documentary Evidence
[33]
Turning to the documentary evidence, the
Applicants submit that the RPD assumed, without any justification and evidence,
that threat letters must bear the signature of the person who is extending the
threat. They argue that the RPD erred by finding that the threat letters should
bear “sufficient security features to be deemed
reliable”. They also contend that the RPD unreasonably raised the bar
for them to prove that the Principal Applicant and his cousin received
telephone threats. They refer to the RPD finding that the documents from the
State prosecutor’s office saying that Estefanye and the Principal Applicant
filed complaints for telephone threats and that the file was closed in 2014,
while perhaps genuine, in no way confirm the veracity of the allegations that
these threats were actually made. The Applicants argue there was no valid
reason for the RPD not to believe that the telephone threats were made.
Instead, the RPD relied on suspicion to reach its conclusion.
[34]
Similarly, the Applicants submit the RPD erred
in concluding, without explanation, that the declaration of the grandmother
would not suffice to outweigh the adverse credibility issues. They also refer
to the courier slip accompanying the letter that threatened the Principal
Applicant’s daughters as including a signature in the box for the sender’s
name, which they argue is evidence that was not analyzed in the decision.
[35]
The Applicants rely on Leal Alvarez v Canada
(Citizenship and Immigration), 2011 FC 154 [Leal Alvarez] at para 5,
as follows:
[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.
[36]
The decision in Leal Alvarez appears to
refer to the RPD having used the language of “conclusive
proof” and proof “on a balance of probabilities”
in articulating the standard of proof applicable to establishing persecution on
a Convention ground. The Applicants in the case at hand are arguing, instead,
that the manner in which the RPD approached the evidence demonstrates the
application of an elevated standard. However, I find nothing in the RPD’s
reasoning which supports this argument. As submitted by the Respondent, the
RPD’s approach to the documents provided by the Applicants in support of their
claim is consistent with that described in Al-Shaibie v Canada (Minister of
Citizenship and Immigration), 2005 FC 887 at para 21:
[21] … In support, I rely on the statement
of Mr. Justice Nadon in Hamid v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 1293 (F.C.T.D.), at para. 21:
Once a Board, as the present Board
did, comes to the conclusion that an applicant is not credible, in most cases,
it will necessarily follow that the Board will not give that applicant's
documents much probative value, unless the applicant has been able to prove
satisfactorily that the documents in question are truly genuine. In the present
case, the Board was not satisfied with the applicant's proof and refused to
give the documents at issue any probative value. Put another way, where the
Board is of the view, like here, that the applicant is not credible, it will
not be sufficient for the applicant to file a document and affirm that it is
genuine and that the information contained therein is true. Some form of
corroboration or independent proof will be required to "offset" the
Board's negative conclusion on credibility.
[37]
The RPD did not require conclusive proof of the
Applicants’ allegations. Rather, it found that the Principal Applicant was not
credible and concluded the Applicants’ documents were of little probative value
and therefore did not bolster their claim. I find no error in the RPD’s
approach. In relation to the courier slip, which the Applicants argue was not
analyzed in the decision, I note that the RPD’s reasons do find that the
courier slips provided with the written threats cannot be clearly linked to the
threatening documents.
[38]
Finally, while noting that the adequacy of
reasons is not regarded as a stand-alone basis for judicial review (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14), I find no such inadequacy in the case at hand. The
RPD’s reasons are sufficient to afford an understanding of why the Applicants’
claim was rejected.
[39]
Neither party has proposed any question of
general importance for certification for appeal.
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