Toronto, Ontario, August 24, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
EINSTEN GUSTAVO FERNANDEZ CUEVAS
LORENA DE LOS ANGELES MONTIEL ESPLUGA
Applicants
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 Refugee Protection Division of the Immigration and Refugee Board (Board) dated September 22, 2004 in which the applicants were found not to be a Convention refugees or persons in need of protection because of their fear of guerrilla forces in Venezuela.
[2] The principal applicant, Mr. Cuevas, (the applicant) is a 31 year-old citizen of Venezuela who fears persecution at the hands of guerrilla forces. His wife, also a citizen of Venezuela, bases her claim for refugee protection on her husband's claim.
[3] The applicant ran a collection agency business in the city of Ciudad Ojeda, Zulia State, Venezuela. He alleges that in June 2003, four armed men entered his business, beat him and demanded that he make monthly extortion payments. The men identified themselves as members of the Columbian Revolutionary Armed Forces (FARC). The applicant states that when he made his first extortion payment of 500,000 bolivars cash on June 19, 2003, he was beaten by the guerrillas and told that he would have to produce more money. He was also told that he would be killed if he reported the matter to the police.
[4] The guerrillas contacted the applicant several more times in July and August 2003 demanding extortion payments. The applicant states that he made the payments totalling 1,500,000 bolivars, but that the men continued to demand more money. On September 9, 2003, one of the applicant's employees was assaulted and robbed by guerrilla members of 1,000,000 bolivars. The following day, the applicant reported the robbery of the employee and the extortion to the police. He claims that later the same day he was contacted by a man who stated that he was going to kill the applicant for having reported the incidents to the police.
[5] Fearful for their lives, the applicant and his wife fled their home and made arrangements to leave the country. They left Venezuela on September 18, 2003, arrived in Canada on October 4, 2003 and made claims for refugee protection the same day.
[6] The applicants allege that following their departure, family members in Venezuela received threatening phone calls from the guerrillas demanding to know where the applicants were located. Family members have had to change houses to avoid the threats.
THE DECISION
[7] The Board rejected the applicants' claim for refugee protection on two bases. First, it concluded that there was no more than a mere possibility that the applicants would face persecution if returned to their home region in Venezuela. The Board was of the view that the principal applicant would not be targeted by the guerrillas because he no longer operated a business and because of the passage of time (he had been out of Venezuela for ten months at the time of the refugee hearing).
[8] The Board also concluded that the applicants had a viable internal flight alternative (IFA) in Caracas, Venezuela. It noted at page 3 of its decision that:
The harm suffered by the [principal] claimant occurred in Zulia state, largely where he lived and worked. The panel finds that the threat of harm to the claimant is of a localized nature.
Given the documentary evidence regarding the extent of FARC's presence in Caracas, the panel finds that there is no more than a mere possibility that the claimant would face persecution were he now to ...relocate to Caracas.
The claimants both have advanced education. The claimant has been successful in business and the claimant's wife is a teacher. The panel finds no cultural, linguistic or other impediments to the claimants' relocation to Caracas. The panel finds that it would not be unreasonable in the particular circumstances of these claimants for them to relocate to Caracas.
ISSUES
1. Did the Board err in concluding that the applicant would face no more than a mere
possibility of persecution if returned to his home region in Venezuela?
2. Did the Board err in concluding that a viable IFA existed in Caracas?
ANALYSIS
Issue No. 1
Did the Board err in concluding that the applicant would face no more than a mere possibility of persecution if returned to his home region in Venezuela?
[9] In concluding that the applicant was not at risk in his home region, the Board noted at page 2 that:
...FARC is a guerrilla group based in Colombia. Although the documentary evidence indicates that FARC does have some presence in Venezuela, in particular in areas bordering Colombia, the panel finds that the extent of FARC activity in Venezuela has not reached the extent that there is a reasonable chance that the claimant would face persecution were he now to return to Venezuela.
[10] The applicant submits that the Board committed a reviewable error by failing to refer to any documentary evidence to justify the conclusion that he was no longer at risk in Venezuela. I agree. This is not a case where the Board found the applicant to lack credibility; rather, the Board rejected the applicant's claim on the basis that his fear of persecution was not objectively well-founded. In my view, given these circumstances, it was incumbent on the Board to provide some evidentiary foundation for concluding that the applicant did not have a well-founded fear of persecution in his home city.
[11] Furthermore, the Board failed to refer to documentary evidence submitted by the applicants' family members indicating that the guerrillas were still looking for the applicants in Venezuela. In particular, the applicant's parents swore an affidavit dated April 23, 2004 in which they deposed that they had received threatening phone calls from guerrillas asking the whereabouts of their son and that they have gone into hiding to avoid the guerrillas. A letter from the applicant's sister confirming this information was also filed with Board. While the Board is not required to mention every piece of evidence, it cannot ignore highly relevant and corroborative evidence - particularly where that evidence belies the conclusion reached by the Board. In this case, the letters from the family members suggest, contrary to the Board's conclusion, that the guerrillas remain interested in the applicant despite the passage of time. If the Board considered the letters to be untrustworthy or of little probative value, then it should have stated so in its decision. See Bains v. Canada (Minister of Citizenship and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.).
Issue No. 2
Did the Board err in concluding that a viable IFA existed in Caracas?
[12] The Court also finds that the Board erred in its analysis of the IFA. The Board concluded at page 3 of its decision:
Given the documentary evidence regarding the extent of FARC's presence in Caracas, the panel finds that there is no more than a mere possibility that the claimant would face persecution were he now to ...relocate to Caracas
However, the Board does not refer to any documentary evidence in support of its conclusion that Caracas is a viable IFA. Nor is it clear from a perusal of the tribunal record which documents the Board relied on when it concluded that Caracas was a viable IFA for the applicants. In my view, the Board was obliged to provide some basis for its IFA finding, particularly where, as here, the applicant testified that the guerrillas have wide reach in Caracas and led evidence that they were still interested in him. The Board's failure to do so constitutes a reviewable error. The documentary evidence before the Board states that kidnappings and extortion are widespread, and have increased in Caracas. For example, see the Response to an Information Request from the Board's Research Directorate entitled "Venezuela: Kidnapping and/or extortion in urban and rural locations, especially in Caracas (2002)."
CONCLUSION
[13] The principal applicant fled his homeland because the guerrillas had identified him as a successful business person with wealth. This terror could not be protected against by the police unless the applicant went into hiding and ceased all business activity. The Board must assume that the principal applicant must, and will, resume his business activity if returned to Venezuela. The applicant is a businessman. He cannot be expected to become something he is not, like a farmer. A leopard cannot change his spots. If the applicant returns to his home province, or to Caracas, the risk of persecution he faces must be assessed by the Board on the assumption that the applicant resumes his life as a businessman. Man must work to live.
[14] For these reasons, the application for judicial review will be allowed. Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS that this application is allowed, the Board's decision dated September 22, 2004 is set aside and the matter is remitted to a different panel of the Board for re-determination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8676-04
STYLE OF CAUSE: EINSTEN GUSTAVO FERNANDEZ CUEVAS
LORENA DE LOS ANGELES MONTIEL ESPLUGA
APPLICANTS
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 24, 2005
REASONS FOR ORDER
APPEARANCES:
Jeinis S. Patel FOR APPLICANTS
SOLICITORS OF RECORD:
Mr. Jeinis S. Patel
Barrister & Solicitor
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.