Date : 20050121
Docket : IMM-696-04
Citation : 2005 FC 90
BETWEEN :
FERNEY HERNANDO ROLDAN LEDEZMA
LEYDI HOANA HENAO DIAZ
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for leave and for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act ("the Act") S.C. 2001, c. 27, of a decision made by the Refugee Protection Division of the Immigration and Refugee Board ("the Board") dated January 8th, 2004. The Board found that the applicants were not Convention refugees nor persons in need of protection.
[2] The principal applicant ("the PA") Ferney Hernando Rolan Ledezma and his common-law wife, Leydi Joana Henao Diaz, are both citizens of Colombia. Both applicants lived on the PA's grandparents farm. The FARC (Fuerzas Armadas Revolucionarias de Columbia), a Colombian guerrilla group, began demanding money from the PA's grandparents on a monthly basis commencing January 2001. Five or six guerrillas would come to the surrounding country side threatening the farmers and, in our case, five or six usually attended demanding money and to be fed. When the grandparents were unable to pay, they were all threatened with death. Finally in September 2002, during a visit from the FARC, when no money was available the PA was shot four times (in the leg) and the female applicant was assaulted.
[3] Following the shooting, the PA was hospitalized in Cali for three weeks and the female applicant for eight days. They then left the farm and moved to Caloto, a nearby village in the department of Cauca. The grandparents also moved to the village and sold their cattle, providing the applicants approximately USD 6,000 to leave the country in April 2003. They travelled to Panama, Costa Rica, and then Canada via Cuba. They arrived in Canada on September 6th, 2003 and claimed refugee status on arrival.
[4] The applicants were found not to be credible. It was also found that they failed to produce adequate documentary evidence to support their claims for refugee status.
[5] In its decision, the Board outlines the omissions and inconsistencies in the PA's PIF form which arose in oral testimony:
(a) the PIF failed to mention an alleged encounter with the FARC in the village after the shooting when the PA was warned that he was considered a military objective of FARC;
(b) the PIF failed to mention notes containing death threats which were allegedly left at the farm on several occasions - this evidence was revealed in oral testimony;
(c) the PA testified that he never reported the shooting to police because he would have had to go to a city (there was no police station in Caloto), nevertheless he was hospitalized in Cali, a large city;
(d) not mentioned in the PIF was the fact that he did make a police report while in the hospital in Cali;
(e) the applicants did not seek refugee protection while in Costa Rica where they had remained for two months;
(f) the female applicant, in her PIF, failed to mention an 8-day hospitalization which came up in oral testimony;
(g) the female applicant's PIF is inconsistent with her oral testimony concerning moving to Caloto with the PA's grandparents;
(h) the Board was presented with no documentary evidence of the shooting; and
(i) the Board was not provided with any persuasive evidence as to why the hospital records from the city of Cali were not available.
[6] The applicants raise four issues:
(i) whether the Board erred in assessing the applicants' credibility;
(ii) did the Board base its decision regarding State Protection on an erroneous finding of fact;
(iii) was the Board's decision made in a perverse and capricious manner, or without regard to the material evidence before it; and
(iv) did the Board err in rejecting the applicants' refugee claim.
[7] The issues can be condensed as follows:
(a) did the Board err in the assessment of the applicants' credibility, as regards the omissions and inconsistencies between oral testimony and the PIF forms; and
(b) if the Board erred in the credibility finding, is there sufficient State Protection in Colombia for the applicants.
[8] The credibility issue was determinative of the decision. If the credibility assessment is flawed, then the decision should be set aside since State Protection and other documentary evidence concerning conditions in Colombia were not considered or examined.
[9] The PA blames the omission from the PIF regarding the meeting with the FARC in the village of Caloto on his former counsel. He suggests he was advised that any omission could be clarified at the hearing.
[10] The PA submits that, when questioned on the shooting, he proposed to show the bullet wounds to the Board that rejected the offer.
[11] The applicants argue the lack of State Protection; that documentary evidence clearly underscores the lack of State Protection in Colombia; that the Board made no reference whatsoever to the documentary evidence which supports their submission that they faced risk to their lives or cruel and unusual treatment or punishment if returned to Colombia.
[12] The applicants further argue that the Board's determination that no shooting occurred is perverse and capricious; the Board suggested they would only rely on medical reports regarding the bullet wounds. The applicants submit that it was an error on the part of the Board to not consider medical reports which were not made available until after the hearing.
[13] The applicants submit that though it is true the PA did not report the shooting incident to the police, the reason for failing to report was not only because the PA needed to be in a city to report the shooting but that he feared corruption. FARC infiltration within the security forces would have resulted in drawing more attention from the guerrillas. Since there is no witness protection in Colombia, citizens are justifiably reluctant to report guerilla encounters; that, if the incident had been reported, it would have been impossible to move freely within Colombia and extremely difficult to leave the country. The applicants also submit that the medical certificate arrived a few days after the hearing but the Board never provided the applicants the opportunity to produce the report, which would have been pertinent to the final decision.
[14] The applicants go on to advance a number of arguments with respect to the Board's total disregard of State Protection and harassment which was duly highlighted in the documentary evidence. This documentation provides ample evidence that they would be at risk if returned to Colombia.
[15] The Board, having determined that the applicants' evidence was "not quite credible", could not conclude that the subjective element of fear was lacking, thus bringing the matter to an end. The applicants submit that they have a genuine reason to fear to return to their country of origin given the country circumstances and they refer to the United Nations High Commissioner for Refugees (UNHCR) report on Colombia as well as other documentary evidence which emphasize that armed conflict in Colombia puts civilians in danger.
[16] The applicants put forth a number of documents supporting the lack of State Protection in Colombia, including a United Nations High Commissioner for Refugees (UNHCR) report on Colombia dated September 2002. The document makes a compelling argument for the lack of State Protection in Colombia.
[17] The respondent submits that the Board rejected the applicants' claim entirely on their lack of credibility; that the applicants failed to explain the inconsistencies and the lack of detail between the PIF and the oral testimony, and more particularly regarding omissions on which the negative decision is based.
[18] The respondent further submits that the applicants failed to adequately explain why the medical report concerning the shooting could not have been produced sooner. The Board found the applicants not credible and rejected the evidentiary basis for their claim. Under section 97 of the IRPA there must be persuasive credible evidence on the balance of probabilities to establish the facts on which claimants rely to allege a substantial danger of being tortured, if returned.
[19] The Court reminds itself that it must be "most careful not to substitute its decision for that of the Board, where the decision is based on an assessment of credibility".
[20] In the present case, I have determined that the lack of credibility determination cannot stand. The Board made erroneous findings of fact which are inconsistent with the main elements of the evidence; the Board also erred in disregarding State Protection issues.
[21] The entire decision is premised on credibility and, as a result, the Board totally dismissed the applicants' subjective fear of return to Colombia. A key determination was that the shooting never occurred as alleged. This fact comes up repeatedly in the documentation and oral testimony and the PA even offered to show the bullet wounds to the Board. Although it was justified in rejecting the offer, there is compelling evidence that the PA was shot four times. There is no denying the PA was hospitalized, there is no denying he had to go to Cali and there is no denying his common-law wife was also hospitalized.
[22] The fact that the medical report was not available at the time of the hearing brought about a perception that the PA was negligent. The explanation offered makes a great deal of sense to the Court. He contacted his aunt who lives in Cali and she indicated she was reluctant to attend the hospital because of the calamitous situation that persists in Colombia. In light of the documentary evidence, this is compelling. May the Court further point out that there was absolutely no contradictory evidence offered or determined by the Board to suggest that the shooting incident did not occur.
[23] As Muldoon J. wrote in Valtchev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No 1131, "when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true, unless there are reasons to doubt their truthfulness". The two main grounds the Board relied upon to reject the applicants' claim are the failure to report the shooting incident to the police and the belief that the shooting did not occur as stated by the applicants. There are no reasons to doubt that the shooting incident did occur.
[24] The Board found, due to the absence of documentary evidence, that the shooting never happened and, in doing so, made an erroneous finding without proper regard to the evidence. In Mui v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 1294 (F.C.T.D), Russell J. found that "conclusions relating to lack of credibility may not be drawn from an absence of evidence". As Campbell J. wrote when addressing this issue in Mahmud v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No 729 (T.D.):
In Ahortor v. Canada (MEI), [1993] F.C.J. No. 705, (93-A-237, 14 July 1993), Mr. Justice Teitelbaum held that the CRDD erred in finding an applicant not credible because he was not able to provide documentary evidence corroborating his claims. Thus, while a failure to offer documentation may be a valid finding of fact, it cannot be related to the applicant's credibility, in the absence of evidence to contradict the allegations.
[25] The Board relied on a number of omissions in the PIF to find the applicants not credible. The omissions relied on by the Board are not material; they do not affect the key elements of the PA's story - that he was shot four times by the FARC, that he is being sought by this revolutionary group and that he lived in fear of drawing FARC attention to their location.
[26] The documentary evidence clearly reveals that at the local level guerrillas and paramilitaries have infiltrated municipal governments and service agencies. They often run their own candidates or create circumstances where local authorities are forced to deal with them. This is sometimes done through intimidation, threats and violence. The UNHCR document dated September 2002 confirms that conflict in Colombia has significantly worsened over the past three years. The FARC has become Colombia's largest and most active guerrilla organization. Their present strength is estimated at 17,000 fighters organized in seven regional bloques. Paragraphs 31 and 40 of the UNHCR document read as follows:
"31. The phenomenon of forced internal displacement is enormous in Colombia, eroding the social fabric and economy of both rural and urban Colombia and causing impoverishment of those affected. All of Colombia's departments are affected by displacement, except the islands of San Andrés and Providencia. The top-five departments generating displacement are Antioquia, Magdelena, Cauca, Bolivar and Chocó.
40. It is important that decisions on refugee status of Colombian asylum-seekers be taken based on a thorough analysis of all individual circumstances of the case, such as the applicant's personal profile, family, social and ethnic background, his or her membership of or real/perceived collaboration with a particular political or social group as well as his or her activities. Against the background of widespread violations of human rights and international humanitarian law, certain groups of persons can be identified as being more frequently targeted than others. For the evaluation of these groups at risk, reliable and up-to date country or origin information is indispensable."
(My underlining)
[27] A thorough reading of the transcript, the applicants' PIF forms as well as the documentary evidence on country conditions in Colombia have convinced the Court that the omissions and inconsistencies relied upon by the Board to determine that the applicants were not Convention refugees nor persons in need of protection were not material. What is consistent throughout is the fact that the male applicant was shot by the guerrillas known as FARC, that his common-law wife was assaulted and, according to the documentary evidence, one of the departments most affected with widespread violations of human rights is the department of Cauca where these applicants resided. It is evident that there is no State Protection in this area of the country.
[28] In closing, counsel for the applicants raised another issue, that of the breach of natural justice. As he pointed out to the Court, at the hearing before the Board there was no Refugee Protection Officer present and obviously the member of the Board appears to have taken over both functions. I am satisfied that the applicants were not given a reasonable opportunity to present their case; the Board unfairly interfered. The transcript contains a total of 91 pages. The first 9 pages were devoted to the presiding member introducing the functions of the Board. Counsel for the applicants asked her opening question on page 10 of the transcript. This is followed by a dialogue between the male applicant and the Board member without counsel even being given an opportunity to intervene until page 17 when she asked a second question. At page 20 counsel for the applicants was allowed to ask two more questions as well as at pages 21 and 22. There were two more questions by counsel for the applicants at page 24. Then the Board member intervened again and, for the next 9 pages, it was banter between her and the male applicant. At page 33 counsel for the applicants was then allowed to ask a further question and for the next 7 pages the Board member continued to probe the male applicant. At page 39 counsel was allowed a further question and for the next 4 pages we have questions and answers between the Board member and the male applicant. Then at pages 43 and 44 counsel for the applicant pursued two new avenues. At page 45 the Board member again took over through to page 49 where there is a slight interruption by counsel for the applicants and the Board member pursues without interruption until page 54. Commencing on page 55 there appears to be no further opportunity for counsel for the applicants until page 83.
[29] I am satisfied that questioning by the Board impeded the proper presentation of the case and, on these grounds alone, the application should succeed.
[30] The application for judicial review is allowed and the decision of the Board dated January 8, 2004 is hereby set aside. The matter shall be returned for redetermination before a differently constituted panel.
JUDGE
OTTAWA, Ontario
January 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-696-04
STYLE OF CAUSE: FERNEY HERNANDO ROLDAN LEDEZMA
LEYDI HOANA HENAO DIAZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JANUARY 13, 2005
REASONS FOR ORDER: HON. MR. JUSTICE ROULEAU
DATED: January 21, 2005
Mr. Jeffrey L. Goldman FOR THE APPLICANTS
Ms. Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jeffrey L. Goldman
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT