Date: 20010612
Docket: IMM-4553-00
Neutral Citation: 2001 FCT 647
BETWEEN:
JUAN CARLOS GOMEZ and ELISABETH BERNAL ARANGO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Delivered from the Bench at Calgary, Alberta
on Monday, June 11, 2001, as edited)
[1] The applicants seek judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated August 11, 2000 wherein the Board denied the applicants' application for refugee status.
[2] The issues are:
1. Did the Board err by ignoring documentary evidence or failing to make credibility findings with respect to the applicants?
2. Did the Board err in characterizing the extortion suffered by the applicants as simply acts of criminality and not acts of persecution related to political opinion?
[3] The Board never did respond adequately to the question as to whether there was more than a mere possibility of persecution to the applicants if they returned to Columbia.
[4] In my view, the Board erred when it found at page 2 of its decision:
... the demand for payment from the claimant by the guerrillas is an attempt at extortion, which is a criminal act. Documentary evidence indicates that no references to victims of guerrilla extortion being perceived as guerrilla collaborators or sympathizers by paramilitaries, army or police, could be found among the sources contacted by the Research Directorate. In Exhibit R-1, item 6, the panel notes that several documents consulted by the Research Directorate refer to the money extorted by guerrillas from individuals and businesses in Columbia as "taxes". The extortion is widespread to such an extent that the panel finds that the claimant is as much a target as any other person in his circumstances, that is, an individual perceived by guerrillas as being wealthy. The panel does not believe that the alleged threats amount to imputing political opinion to the claimants.
The male applicant testified that the extortion he suffered did not simply occur for economic reasons but the extortion attempts were to determine which side the applicants were on politically and to force the applicants to take a side. Notwithstanding the Board's statement that there is no documentary evidence as to "victims of guerrilla extortion being perceived as guerrilla collaboration", there is evidence of failure to pay war taxes (extortion) being considered by the guerrillas or paramilitary as evidence of support for the other side. There is also evidence of killings and serious physical assaults (including torture) on perceived supporters of the other side. The applicant believed he was targeted for extortion because he was perceived as wealthy and that extortion is used to place victims on one side or the other of the political conflict in Columbia, and that this exposes victims to harm because they are perceived as collaborators or sympathizers. In the circumstances of this case, as found by the Board, which includes the fact that it did not make any negative credibility finding, if the applicants are threatened with harm for supporting one group or another the applicants are going to be persecuted for imputed political opinion. Consideration also should have been given as to whether the applicants' fear of extortion could relate to the grounds of a particular social group: see Vasudevan v. Canada (Secretary of State), [1994] F.C.J. No. 1073 (T.D.), per Gibson J. and Labsari v. Canada (MCI), [1999] F.C.J. No. 666 (T.D.), per Teitelbaum J.
[5] The respondent relies on the case of Adu v. MEI, [1995] F.C.J. No. 114 (C.A.), wherein Hugessen J.A. stated:
The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
However, in this case there is no such failure in the documentary evidence. The Board should have given some consideration to the male applicant's testimony that the guerrillas inquired about his political support and used extortion as a test for that support.
[6] The Board failed to analyse the possibility of a political motivation for the extortion, which should have been done in a manner not inconsistent with these reasons. The Board should have more adequately addressed the possibility that the applicants may face persecution upon their return to Columbia.
[7] The application for judicial review is granted. This matter shall be returned to a differently constituted panel of the Board for redetermination.
"W. P. McKeown"
JUDGE
CALGARY, ALBERTA
June 12, 2001