Ottawa, Ontario, November 24, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
EMILCE ROCIO TORRES GONZALEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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, (the Board) wherein the Board determined that the applicant, a 31 year old citizen of Columbia, was not a Convention refugee or a person in need of protection.
[2] Ms. Gonzalez based her claim for refugee protection on a fear of persecution at the hands of members of a paramilitary group who abused her during a four-month period in 1997. The applicant and her two sons, aged ten and eight as of the date of the Board's decision, left Colombia for the United States in May 1997 as visitors. They remained in the United States for four years and three months during which they made no claim for asylum.
[3] The events recounted by Ms. Gonzalez were that men claiming to be paramilitaries moved next door to the applicants who were then living at her aunt's home in Bogotá. Ms. Gonzalez says she was abused by them and others, including both physical and sexual assaults and being forced to cook. At one point she was forced to go to a house in the mountains until she escaped one week later.
[4] The applicant sent her children to live safely with another aunt, also in Bogotá, not long after the neighbours arrived. After her escape, the applicant joined her children at the aunt's home for about one month after which they left Colombia. The aunt next door to the alleged paramilitaries remained there until after the applicants left Colombia and then moved to the home of the second aunt.
[5] The Board found that the applicant failed to demonstrate that she faced an ongoing risk or continued threat of persecution in Colombia. In particular, the Board noted that there was no evidence that the paramilitaries had sought out or harmed the applicant, her children or her aunts while she hid at her aunt's home after her escape from the mountains. The Board also noted that the paramilitaries have not approached either of the applicant's aunts since the applicant left the country in 1997.
[6] The Board rejected the applicant's explanation that she did not make a claim in the US because she feared being sent back to Colombia. In particular, the Board found implausible the applicant's testimony that she did not know about the USapplication process. The Board concluded that the applicant's explanations were so weak that there was no subjective fear.
[7] The Board found that the applicant's risk is faced generally by others in Colombia. The Board determined that the applicant would not be individually targeted and that the documentary evidence did not support a finding of an objectively well-founded fear.
[8] The Board accepted a psychologist's report that the applicant suffers from Post-Traumatic Stress Disorder; however, having taken that into account, the Board concluded that there remained no objective basis for the claims.
Issues
[9] The issues raised in these proceedings are whether the Board made patently unreasonable findings of fact and whether it ignored relevant documentary evidence.
Standard of Review
[10] It is well settled that it is not the role of the Federal Court, on judicial review, to substitute its decision for that of the Refugee Protection Division even if it might not have reached the same conclusion: Singh v. Canada (Minister of Employment and Immigration) (1983), 3 D.L.R. (4th) 452 (F.C.A.); Oparanyamele v. Canada (Minister of Citizenship and Immigration), 2005 FC 1247 at para. 40 (F.C.T.D.).
[11] Findings of fact can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Protection Division. The findings must be patently unreasonable before the Court may intervene: Liang v. Canada(Minister of Citizenship and Immigration), 2003 FC 1501 at para. 9 (F.C.T.D.).
[12] The standard of patent unreasonableness has been equated by the Supreme Court of Canada to a decision that is "clearly irrational" or "evidently not in accordance with reason", so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52. In Voice Construction Ltd. v. C.G.W.U., [2004] 1 S.C.R. 609 at para. 18, the Supreme Court said that to be patently unreasonable, the decision must be so clearly wrong that "the result must almost border on the absurd."
Were the Findings of Fact Patently Unreasonable?
[13] The applicant submits that the Board, by accepting the psychologist's report that she suffers from Post-Traumatic Stress Disorder, must be taken as having accepted the underlying events which, in the psychologist's opinion, caused the disorder. Consequently, the argument goes, the Board could not then conclude that she does not suffer a subjective fear of persecution because of those events.
[14] I cannot accept that view of the weight of the medical evidence. To do so would, in effect, substitute the psychologist's opinion for the Board's mandate which is to assess the evidence and arrive at a determination of the facts. It was open to the Board, in considering the report, to ascribe whatever weight it deemed appropriate to it in light of all of the evidence.
[15] The Board's findings that the applicant did not face a continued risk of persecution in Columbia were based, in part, on the applicant's own evidence that the paramilitaries had only once inquired about her whereabouts after her departure in 1997. At the hearing, the applicant had testified that there had been no follow-up to ascertain her location.
[16] Furthermore, the applicant testified that the difficult situation in Colombia is faced generally by everyone. The applicant stated "...there are lots of people who have to face that environment, but lots of people cannot leave the country because they don't have any money. Thanks to God I could leave the country."(Tribunal record at 166). As the Board found, this evidence does not point toward a finding of personalized risk.
[17] The applicant submits that the Board erred in concluding that her evidence as to why she did not make a claim in the United States was vague and asserts that she provided plausible explanations for the delay. It is well settled that delay in making a refugee claim is an important factor which the Board may consider in weighing a claim for refugee protection: Heer v. Canada(Minister of Employment and Immigration), [1988] F.C.J. No. 330 (QL). In this case, a delay of over four years suggests a lack of a subjective fear of persecution and it was open to the Board to reject the applicant's explanations. The applicant, in effect, is asking the Court to make its own assessment of her reasons and substitute its opinion for that of the Board. Unless the finding was patently unreasonable, which I do not find, there is no basis for the Court's intervention.
Did the Board Ignore Documentary Evidence?
[18] The applicant submits that relevant evidence before the Board was not considered in determining her claim. The documentary evidence on country conditions contained numerous references which support the claim and the Board's failure to mention this evidence in its reasons constitutes reviewable error: Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1; Toro v. Canada(Minister of Employment and Immigration), [1981] 1 F.C. 656 (F.C.A.); Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.).
[19] The Board's references to the documentary evidence are, at best, succinct. Apart from a discussion of the psychologist's report mentioned above, the only comments that can be found are a brief reference to the general situation in Columbia and then a statement that "...the documentary evidence does not support a finding that they have an objectively well founded fear for any other reason."
[20] The Tribunal record contains the table of contents for the Refugee Protection Division information package on Colombia but does not include reproductions of any of the individual reports. The applicant's submissions include several of these reports. Highlighted portions of the evidence in the applicant's record indicate, for example, that persons who left Columbia and returned have been killed even after a period of months or years.
[21] The applicant submits that this evidence clearly contradicts the Board's findings and should have been expressly considered in its reasons. When a panel simply cites documentary evidence in support of its conclusion, without commenting on conflicting evidence, it leaves doubt as to whether the tribunal has taken into account the totality of the evidence before it: Costa v. Canada (Minister of Employment & Immigration), (1994) 23 Imm. L.R. (2d) 316 (F.C.T.D.).
[22] It is well settled that the fact that all documentary evidence is not mentioned in the Board's reasons is neither fatal to its decision nor does it indicate that the panel failed to consider certain evidence: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 at 108; Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 319 (F.C.A.). The Board is presumed to have weighed and considered all of the submitted evidence until the presumption is rebutted: Florea v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL).
[23] Having reviewed the documentary evidence highlighted by the applicant, I am unable to conclude that it clearly contradicts the Board's finding of a lack of objective support for the claim. The evidence indicates that in the generally volatile and violent environment of Columbia, the paramilitaries may seize persons such as the applicant to serve their purposes. Moreover, they have long memories in pursuing their enemies, and they maintain sophisticated databases of persons and locations. But why they would have an interest in a young woman who left eight years ago is not at all clear, when she appears to have meant nothing more to them than as an object of sexual abuse and as a cook. That, in itself, is appalling but it does not mean that her claim of a fear of persecution if she were to return to Columbia is objectively well-founded.
[24] Two elements are required to establish a claimant's "well-founded fear" of persecution. Fear must be felt subjectively by the claimant and this fear must be well founded in an objective sense: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); Canada(Attorney General) v. Ward, [1993] 1 S.C.R. 689.
[25] It would have been preferable for the Board in this case to have elaborated upon its reasons for concluding that the documentary evidence did not support a finding that the applicant had an objectively well-founded fear of persecution. However, a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail. And when it is clear that no different result could be reached on a rehearing, the appropriate course of action is to refuse an order requiring that such be done: Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90 (F.C.T.D.).
[26] No questions of general importance were proposed by the parties and none are certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
" Richard G. Mosley "
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-892-05
STYLE OF CAUSE: EMILCE ROCIO TORRES GONZALEZ
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2005
APPEARANCES:
| Cynthia Mancia
|
|
| Nicole Butcher
|
SOLICITORS OF RECORD:
| CYNTHIA MANCIA Mancia and Mancia Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C Deputy Attorney General of Canada Toronto, Ontario
|