Federal Court Decisions

Date: 20060216

Docket: IMM-1952-05

Citation: 2006 FC 160

Ottawa, Ontario, February 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

CARLOS ANDRES ROJAS RENTERIA

LIZ JOHANNA STEFAN ORJUELA

MARIA CAMILA ROJAS STEFAN

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                Regard for country conditions is not only important but primordial for a tribunal specialized in particular country conditions in respect of each specific individual claim. The credibility finding of the specialized tribunal hinges on its inherent logic. Without the specialized tribunal's demonstration of such inherent logic in its reasons, how could this Court's deference be accorded to it?

JUDICIAL PROCEDURE

[2]                This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated March 2, 2005, wherein it was determined that the Applicants are not Convention refugees or persons in need of protection.

BACKGROUND

[3]                The Applicants, Mr. Carlos Andres Rojas Renteria, his wife, Ms. Liz Johanna Stefan Orjuela and their daughter, Ms. Maria Camila Rojas Stefan, are all citizens of Colombia.

[4]                Mr. Rojas Renteria's father, Mr. Vicente Rojas, was a detective with the Administrative Department of Security (DAS), the national security agency in Colombia. He participated in operations against the Fuerzas Armadas Revolutionarias de Colombia (FARC) guerrillas and he and his family were threatened by the FARC. To protect his family, he lived separately from them. On September 14, 1996, there was an attempt on his life.

[5]                In March 1997, Mr. Rojas Renteria alleges he became active in a local political party in Bogota, the Civic Ecological Party. He was co-coordinator (with Luis Eduardo Cortes Garay) of the campaign for the Senate of the founder of the Party, German Vargas Lleras. In January 1998, an armed man who identified himself as a member of the FARC, warned Mr. Rojas Renteria and several co-workers to stop spreading ideas that were different from those of the FARC.

[6]                In March 1998, Mr. Rojas Renteria claims he received a call asking him for a list of German Vargas Lleras' activities. Mr. Rojas Renteria told him he was not aware of all of German Vargas Lleras' activities. The caller then threatened him and his family and said that Mr. Rojas Renteria's father was a military objective who, although he has escaped the first attempt on his life, would not escape a second time.

[7]                On March 24, 1998, after attending a political meeting, Mr. Rojas Renteria heard someone call out his name. Then he heard three shots. He ran and was not hit but one of his companions was wounded.

[8]                Mr. Rojas Renteria allegedly continued to receive threatening phone calls. On October 14, 1998, he received one at his new address even though he and his family had moved to evade the FARC. Mr. Rojas Renteria asked his father to get him and his family protection from the DAS. His father told him that he tried to do so but that the DAS refused to provide them with protection.

[9]                After a call at the end of December 1998, in which the FARC threatened him and his family again because he was not taking their threats seriously, Mr. Rojas Renteria decided that he and his family had to leave Colombia as soon as possible. As they did not have much money and his wife and daughter did not have passports or visas, Mr. Rojas Renteria left by himself for the United States on January 16, 1999. There, he worked and sent money to his wife for her to obtain visas and purchase plane tickets. His wife and daughter left Colombia and joined him in the United States on July 20, 1999.

[10]            The threats continued after he left Colombia. Letters from the FARC were left for him at his mother's house in July 2001 and April 2002. There were threatening phone calls made to his mother's house. His mother also received a condolence card for him.

[11]            In October 1999, Mr. Rojas Renteria inquired about making an asylum claim in the United States. Initially, he was told that his claim would not succeed. In 2000, when he was counselled that he did have a strong case, he did not have enough money to pay the lawyer to prepare the petition. In May, 2002, after finding a church that helped refugee claimants, he made an asylum claim. The asylum petition was refused and Mr. Rojas Renteria appealed the refusal. Fearing that the appeal would also be denied, Mr. Rojas Renteria and his family did not wait for the result of the appeal. They came to Canada in July 2004 and made a refugee claim.

DECISION UNDER REVIEW

[12]            The Board found that there was insufficient credible or trustworthy evidence to support the claim. In particular, it found that because Mr. Vargas Lleras, Mr. Cortes Garay and Mr. Rojas Renteria's father were still living in Colombia, Mr. Rojas Renteria's allegations regarding his fear of persecution from the FARC were not truthful or credible.

[13]            It also found that because of the pressure that the FARC is experiencing from government forces, it would not spend its energy looking for Mr. Rojas Renteria and his family, especially when his father is still in the country.

[14]            The Board did not believe that the FARC would be looking for Mr. Rojas Renteria because of his participation in the campaign of German Vargas Lleras when Mr. Vargas Lleras himself, his staff and Mr. Cortes Garay are still in Colombia.

[15]            The Board found that the fact that Mr. Rojas Renteria left his wife and daughter in Colombia when he went to the United States was indicative of his lack of fear for their lives. Therefore, the Board concluded that there is no reasonable chance that he would face persecution if he were to return to Colombia.

[16]            The Board also found that the country documentation shows that steps are being taken by the government of Colombia against the FARC and therefore, there is no serious possibility that Mr. Rojas Renteria would face prosecution by the FARC. It also found that there was no credible or trustworthy evidence that Mr. Rojas Renteria's father sought protection for him and his family. It concluded that Mr. Rojas Renteria did not make sufficient attempts to seek state protection.

[17]            Furthermore, the Board determined that there was an internal flight alternative (IFA) for Mr. Rojas Renteria since the FARC has not located his father or Mr. Cortes Garay and did not locate his wife and daughter while they were in Colombia alone.

[18]            Finally, the Board found that the delay in making an asylum claim in the United States and his failure to wait for the decision on his appeal were indicative of lack of subjective fear and therefore, Mr. Rojas Renteria and his family left Colombia for reasons other than those they allege.

ISSUES

[19]            Is the decision of the Board patently unreasonable?

ANALYSIS

Standard of review

[20]            The Board's assessment of the credibility of the evidence is entitled to the highest level of deference by this court. Where the Board's inferences and conclusions are reasonably open to it on the record, this Court should not interfere, whether or not the Court agrees with the inferences or conclusions drawn. (Aguebor; Grewal)[1]

Credibility

[21]            The Board is obliged to state its negative credibility findings in clear and unmistakable terms. Such findings should be supported by examples which led the Board to doubt the applicant's testimony. (Hilo; Sahadat)[2] The Board did provide certain examples and explanations to support its finding that Mr. Rojas Renteria was not credible. However, certain statements made by the Board were not explained, nor was the evidence examined as a whole.

[22]            In order to successfully challenge the Board's decision, Mr. Rojas Renteria and his wife and daughter must demonstrate that the conclusions of the Board were so significantly erroneous that they could be termed as perverse or capricious. Certain credibility findings of the Board were open to it and cannot be said to be patently unreasonable; however, there were other credibility findings where an error may have ensued which require further examination by the Board and therefore, a new hearing.

Objective fear

[23]            The Board did not believe that the FARC would still be looking for Mr. Rojas Renteria three or four years after he left Colombia, given that it is experiencing pressure from the government. This finding is unreasonable as it is not supported by any evidence. On the contrary, there was evidence before the Board which stated that in some cases the FARC was still searching for some individuals years later, long after the individuals had left the country.

[24]            The Board doubted the credibility of Mr. Rojas Renteria's allegations because Mr. Cortes Garay is still in Colombia and does not seem to have been found by the FARC. Mr. Rojas Renteria submits that the Board erred by considering the situation of Mr. Cortes Garay instead of his own to determine if there was a more than probable risk of persecution if he was returned to Colombia. It is important to note that very little is known of Mr. Cortes Garay's situation and Mr. Rojas Renteria's father is in hiding in Colombiaaccording to Mr. Rojas Renteria. Therefore, to say that because the two in Colombia are not persecuted, he would not be persecuted, can be termed as erroneous or perverse logic [In this regard, reference is made to the judgement of Mr. Justice Harrington in Siddiq v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 647 (QL), [2004] FC 490].

Subjective fear

[25]            Mr. Rojas Renteria testified that he left for the United States in January 1999, leaving his wife and daughter behind. He explained that his wife and daughter did not go with him at that time because they did not have passports or visas and they did not have enough money. During the next few months, he worked and sent his wife money so that they could join him in the United States as soon as possible, which they did in July 1999.

[26]            The Board found this behaviour (leaving his wife and daughter behind) to be indicative of Mr. Rojas Renteria's lack of subjective fear. This finding is unreasonable. Mr. Rojas Renteria's explanation is plausible. There was no evidence before the Board to support a negative finding on this matter.

State protection

[27]            The claimant has an obligation to seek protection unless it is objectively reasonable not to do so. Furthermore, the claimant has the burden of rebutting the presumption of state protection. In order for the presumption to be rebutted and in order to establish the reasonableness of failing to approach the state, the claimant must present "clear and convincing" proof of the state's inability to protect. (Ward)[3]

[28]            Although the Board found that there was no credible or trustworthy evidence that Mr. Rojas Renteria's father asked for protection for him and his family, it is significant to note that Mr. Rojas Renteria could not necessarily have gone to the authorities on his own to report the alleged events. Furthermore, according to the Board's own country condition documentation, the finding of the Board that Mr. Rojas Renteria did not make sufficient attempts to obtain state protection was not open to it.

[29]            The country condition document entitled "Colombia: Whether individuals threatened by the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC), National Liberation Army (Ejército de Liberación Nacional, ELN) or United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC) can avoid such threats by relocating to Bogotá or another region of the country (May 2002-July 2003)", prepared by the Research Directorate of the Immigration and Refugee Board, states:

Both the RIC consultant and the AI USA Colombia country specialist indicated that the armed groups' capacity to locate and target threatened individuals remains unchanged since Alvaro Uribe Vélez assumed the office of president in August 2002 (United States30 June 2003; AI USA 9 July 2003). According to the Georgetown University adjunct professor, both the 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 (30 June 2003).

Similarly, the associate professor at Stetson University College of Law indicated that:

In the last several years it has become increasingly difficult for an individual to escape the long arm of the guerrilla and para [paramilitary] groups. ...[4]

Internal Flight Alternative (IFA)

[30]            Mr. Rojas Renteria alleges that he thought of going to live in Espenial but was told guerrilla presence was very strong there. He testified that the FARC could find him anywhere in Colombia given that they have a shared network of intelligence with other groups in order to find people they are looking for. Although the FARC has not found Mr. Rojas Renteria's father, who is allegedly a military objective, that is simply because his father is hiding as was explained by Mr. Rojas Renteria. Similarly, although Mr. Cortes Garay is still in Colombia, living a few doors down from Mr. Rojas Renteria's mother's house, Mr. Rojas Renteria has no significant knowledge of that which is occurring to Mr. Cortes Garay.

[31]            When Mr. Rojas Renteria went to the United States, he left his wife and daughter in Bogota where they lived for seven months before joining him in the United States. Although during that time they did not receive any threatening phone calls or other messages from the FARC, as stated in the excerpts from the country condition document emanating from the Board itself (above), it may be known that Mr. Rojas Renteria is outside Colombia.

As was specified above

... both the guerrillas and paramilitary groups

                often employ highly sophisticated data bases and computer networks. ... 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 (30 June 2003).

Therefore, an analysis of the threat should be examined in light of the situation as specified by the Board which, at the very least, must analyse its own documentation. If it is to set it aside, the Board must clearly state why it is not bringing into purview an assessment that was prepared for the Board's very purpose.

[32]            The Board's finding that an IFA is available even if there is a serious possibility that they would face persecution if they were to return to Colombia is untenable as specified by this Court in the Board's own document.

  

CONCLUSION

[33]            As the Board is the trier of fact and had the benefit of evaluating the testimony of the claimants, this Court must show a high degree of deference to its findings of fact. In this case, the Board made some findings of fact that were simply erroneous at best (if not perverse) as they were not based on the evidence before it. Its conclusion that Mr. Rojas Renteria was not credible on several issues and that his allegations were not trustworthy was open to it for certain significant portions; however, the Board's conclusions appear more as a blanket statement rather than a specific analysis of important information whose source is the Board itself.    Therefore, there is reason for this Court to interfere with the decision of the Board and have it thereto remitted.

ORDER

THIS COURT ORDERS that

1.          The matter be remitted to the Refugee Protection Division of the Immigration and Refugee Board for re-determination by a differently constituted panel.

2.          No question be certified.

"Michel M.J. Shore"