Toronto, Ontario, January 17, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, dated February 1, 2005, wherein the Board determined that the applicant was not a Convention refugee or a person in need of protection.
[2] For the reasons set out below, I have concluded that the decision is patently unreasonable and that the application must be granted and the matter remitted for reconsideration by a differently constituted panel.
[3] Mr. Duran is a 21 year-old citizen of Colombia who made a claim for protection based on his fear of being targeted by the National Liberation Army (ELN).
[4] The claim results from Mr. Duran's involvement with a Catholic evangelical group called the Juvenile Apostolic Saleciano, which, apart from proselytizing the faith, was active in efforts to better the conditions of the more unfortunate. He testified that on September 15, 2000, while returning home to Califrom Buenaventura with the group, the applicant and other members of the group were stopped and detained by the ELN for approximately one hour, during which the applicant alleges group members were mistreated. According to the applicant, the ELN threatened the group members that if they ever returned to Buenaventura they would be killed or forcibly recruited into the ELN.
[5] The incident was reported to the police in Buenaventura by the applicant's mother, following which the family received threatening phone calls. Shortly thereafter, the applicant and several friends, who had also received such calls, were chased by men the applicant believed to be from the ELN and believed to be armed. This incident was also reported to the police and to the Attorney General's office. The applicant sought refuge at his Aunt's house and in December 2000, when he had arranged the funds and travel documents, fled Columbia for the United States.
[6] The applicant retained a lawyer and made a claim for asylum in the United States in January 2001. That claim was denied in February, 2004, largely for a lack of supporting documentation. The applicant filed an appeal of this decision but then decided to come to Canada to assert a claim for protection which he did in May 2004.
[7] In its February 1, 2005 decision, the Board concluded that the applicant was not credible and lacked both a subjective and objective fear of persecution. In particular, the Board found that there was no evidence that the ELN had continued to be interested in the applicant after he left the country and that the applicant's delay in leaving Colombia after being targeted by the ELN and in making a claim in the US, demonstrated the lack of a subjective fear.
[8] The Board found that the applicant did not fit the profile of someone who would be targeted by the ELN as he was not the leader of the group. As well, with reference to some documentary evidence before it, the Board determined that the applicant did not fit into a specific subset of Catholic lay persons, those involved in human rights work, which the Board considered would likely be targeted by the ELN.
[9] The applicant challenged each of these findings as not based on the evidence before the Board.
[10] The documentary evidence in the Certified Tribunal Record regarding the treatment of Christian evangelicals in Colombia is minimal. There is only one two page report prepared by the Board's Research Directorate. As found at pages 67-68 of the Certified Tribunal Record, it says that certain Christian and evangelical groups have been targeted by all sides in the civil conflict in Colombia because of their social work, particularly in areas with guerrilla and paramilitary presence. The same document also says that while evangelicals and Christians (presumably other than Catholics of that description) have been targeted more than Catholic priests, nuns and laypersons, many Catholics have been targeted when involved in human rights work.
[11] Contrary to the respondent's submissions, this report does not say that Catholics are only targeted if involved in human rights work. Nor does it say that the level of the person targeted is a significant factor in the persecution. These appear to have been the conclusions reached by the Board and were not, in my view, based on the evidence.
[12] The Board drew an adverse inference respecting the applicant's credibility because of its finding that he was not a high level member of the church and that it was implausible, therefore, that he would be targeted by the ELN. The Board seems to have been of the view, based on the questions posed to the applicant during the hearing that only the priest at the applicant's school would be at risk of being targeted. In his reasons, the Board member makes note of the fact that a priest remained at the school. The significance of this is not apparent to me. The member also states that the applicant said that he was not a leader of the evangelical group but that was not the applicant's evidence as found at page 8 of the transcript and page 187 of the certified record.
[13] The Board determined that it was not plausible that the ELN would focus on the applicant as he was just one of fifteen students in the group. The applicant stated during his hearing that he did not know if the other group members had been pursued by the ELN. However, he also filed a letter from the priest who worked with him indicating that there are others that were part of the group who were victims of violence. Thus, contrary to the Board's conclusion, the applicant provided the Board with evidence that he was not the only person in the group who had problems with the ELN.
[14] The Board also found no credible or trustworthy evidence that the two men who had chased the applicant and his friends on September 24, 2000 were from the ELN. The Board based its finding on the applicant's evidence that he did not see whether the two men chasing him were armed. However, this conclusion ignored the context in which the evidence had been presented, notably the prior events including the threatening telephone calls in which the ELN was clearly identified. Moreover, it ignores the applicant's narrative in which he stated "[m]y friend told me that they saw these people were armed. I did not see that because I only ran." (Tribunal Record at 29).
[15] While decisions of the Board based on credibility findings must be accorded a high level of deference, such findings based on implausibility determinations are somewhat more susceptible to scrutiny on judicial review because the Court is often in just as good a position as the Board to decide whether the claimant has presented a coherent and plausible narrative of events: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, [1992] F.C.J. No. 481 (C.A.) (QL). I am satisfied that, in this case, the Board's implausibility findings do not stand up to scrutiny and were patently unreasonable.
[16] I am also satisfied that the Board erred in concluding that the applicant's delay in leaving Columbia and in failing to make an immediate claim for asylum upon his arrival in the US indicated a lack of subjective fear. With regard to the delay in leaving Columbia, it was not four months as the Board found, but on the evidence, about two and a half. The applicant provided an explanation that he required the time to obtain the necessary travel documents and funds. Upon his arrival in the United States, he hired a lawyer to assist him with making his claim. He filed his claim one month later. There was no delay in making his claim upon entry to Canada.
[17] Delay in making a refugee claim is an important factor which the Board may consider in weighing a claim for refugee protection: Gonzalez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1595, [2005] F.C.J. No. 1965 (QL); Shahzad v. Canada (Minister of Citizenship and Immigration), 2004 FC 876, [2004] F.C.J. No. 1069 (QL). What will constitute an unreasonable delay pointing to a lack of subjective fear will depend on the particular circumstances of each case.
[18] A review of the case law indicates that unreasonable delays have been found where the delay is in the range of seven weeks to seven years: see Shahzad, above; Gonzalez, above; Kandiah v. Canada (Minister of Citizenship and Immigration), 2005 FC 181, [2005] F.C.J. No. 275 (QL); Soto v. Canada (Minister of Citizenship and Immigration), 2004 FC 1521, [2004] F.C.J. No. 1830 (QL); Juzbasevs v. Canada (Minister of Citizenship and Immigration), 2001 FCT 262, [2001] F.C.J. No. 541 (QL).
[19] In this case, the Board appears to have disregarded the applicant's explanations for the delays incurred in leaving Columbia and in making his U.S.claim without providing any reasons as to why they are not sufficient. Accordingly, I find the Board's conclusion that they indicate a lack of subjective fear to have been made without regard to the evidence.
[20] Overall, I find that the Board's decision is patently unreasonable and this application must be allowed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is granted and the matter is remitted for reconsideration by a differently constituted panel. No questions are certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1444-05
STYLE OF CAUSE: ARGEMIRO STIVEN PEREA DURAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRAITON
Respondent
DATE OF HEARING: JANUARY 17, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JANUARY 17, 2006
APPEARANCES BY:
Jonathan Otis FOR THE APPLICANT
Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman
Toronto, ON FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT