Gutierrez v. Canada (Immigration, Refugees and Citizenship)

Gutierrez v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2018-01-04
Neutral citation
2018 FC 4
File numbers
IMM-1508-17
Decision Content
Date: 20180104
Docket: IMM-1508-17
Citation: 2018 FC 4
Ottawa, Ontario, January 4, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALEXANDER CASTRILLON GUTIERREZ
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada [RPD or the Board], dated March 6, 2017 [Decision], which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under ss 96 and 97 of the Act.
II. BACKGROUND
[2] The Applicant is a citizen of Colombia. He arrived in Canada on December 4, 2016 and made a claim for refugee protection.
[3] The basis of the Applicant’s claim dates back to the 1990s when the AUC, a Colombian paramilitary group, targeted his parents for extortion. After the family ceased being able to pay, the AUC threatened the Applicant’s siblings. The threats caused the Applicant’s siblings to flee Colombia between 1997 and 1999. One of his brothers settled in the United States after studying there. His other brother and his sister fled to Canada where they made successful claims for refugee protection. The Applicant and his parents stayed in Colombia.
[4] Continued persecution by the AUC led to the Applicant’s parents leaving Colombia on December 24, 2006. After transiting through the United States, they arrived in Canada on January 16, 2007. Like the Applicant’s brother and sister, the Applicant’s parents made successful refugee claims.
[5] The Applicant attempted to immigrate to the United States between 2012 and 2015. His applications for an American visa were denied.
[6] The Applicant alleges that his flight to Canada was prompted by a series of threatening phone calls telling him that he had to leave Colombia that began in August of 2015. The Applicant did not initially report the threats to Colombian authorities but moved himself and his family from Medellin to Itagui, Colombia. The Applicant says that he left Colombia after receiving another call in Itagui in September of 2016. The Applicant considered this call more threatening since the caller purportedly told the Applicant that he knew that the Applicant’s brother, a Royal Canadian Mounted Police [RCMP] officer in Canada, was a snitch for the police and had cost the caller a lot of money. The Applicant believed that this level of detail indicated that the caller knew a lot about his family. The Applicant says that he reported this call to Colombian authorities before he departed Colombia but that he did not hear more about their investigation.
[7] The Applicant travelled to the United States without his family. He first made an asylum claim in the United States. After being released from detention, the Applicant journeyed to Canada and made his refugee claim at the Canadian border.
III. DECISION UNDER REVIEW
[8] The Board found that the claimant is neither a Convention refugee nor a person in need of protection. The Board’s conclusion is based on a negative credibility determination.
[9] After stating that the Applicant’s identity was established, the Board Member moves on to the Board’s credibility concerns. Because they were numerous, the Decision purports to only describe some of the Board’s specific concerns.
[10] The Decision characterizes the Applicant’s delay in leaving Colombia as so “egregious” that it negatively affects his credibility. Even though the Applicant’s siblings left in the late 1990s, and the Applicant’s parents left in 2006, the Applicant remained in Colombia. Since the Applicant had allegedly stayed to take care of his parents, his stated reason for staying disappeared after 2006. The Board points out that the Applicant’s parents’ refugee narrative described three of their children being threatened in the 1990s. Since three of the Applicant’s siblings fled Colombia in the late 1990s, the Board questions whether the Applicant was among those threatened. This leads the Board to question whether the Applicant was threatened more recently as well.
[11] The Board does not find the nature of the alleged threats to the Applicant to be plausible. The Applicant indicated that he was told to leave Colombia because his brother had cost the people threatening him money. Yet there was no demand for money, as there had been in his parents’ case. The Board does not accept that forcing the Applicant to leave Colombia and rejoin his family in Canada could constitute reprisal. This leads the Board to believe that the threats were concocted after the Applicant failed to obtain an American or Canadian visa.
[12] The Applicant stated that, because of his family’s history, his fear for his life never disappeared, but that he did not experience threats in Colombia between 2006 and 2015. The Applicant also acknowledged that economics contributed to his decision to seek a visa in 2012. The Board finds the Applicant’s stated fear inconsistent with his failure to report the 2015 threats to Colombian authorities. The Board concludes that the Applicant has had economic reasons for attempting to leave Colombia since 2012.
[13] The Board finds the Applicant’s failure to go to the police after the first threatening phone call inconsistent with the Applicant’s statement that his fear of persecution never disappeared between 2006 and 2015. The Board Member points out that the Applicant initially testified that he considered the first call a bad joke. When the Board confronted the Applicant with its concerns about this explanation, the Applicant added that he had no confidence in the police and that he did not ignore the first call. The Board finds that this subsequent explanation directly contradicts the Applicant’s earlier explanation.
[14] The Board also takes issues with the timing of the Applicant’s decision to report the 2016 threat to Colombian authorities. The Board notes that the Applicant’s written testimony states that he had already bought a ticket to leave Colombia before going to the authorities. During oral testimony, however, the Applicant claimed that he decided to leave Colombia after being unsatisfied with official response to his report. The Board finds the Applicant’s explanation for this contradiction “obtuse and indirect.” The Applicant also suggested that a report from the authorities may have been lost. The Board does not believe that this report ever existed or that the Applicant reported the threats to Colombian authorities. Instead, the Board finds the Applicant untruthful based on his inability to tell a consistent story.
[15] The Board Member finds that the Applicant also contradicted himself when he stated during oral testimony that the callers specifically identified themselves as AUC. The Applicant’s written narrative described the first threatening phone call as coming from an unknown individual. The Applicant initially explained this inconsistency by asserting that he had only suspected the first callers as being AUC because they mentioned his family, but that they had not stated that they were AUC. Asked to explain the inconsistency between this explanation and his earlier oral testimony, the Applicant blamed this on an oversight in the written narrative caused by the stress that he was under at the time. The Board notes that this does not explain inconsistencies in the Applicant’s oral testimony regarding the call.
[16] The Board further notes that the Applicant’s story about his level of education changed between the Port of Entry form and oral testimony. The level of education in the earlier form was corroborated by the Applicant’s brother’s testimony. The Board finds that the Applicant was deliberately misleading about his education level in an attempt to influence the Board’s determination of whether he could successfully relocate to Bogota.
[17] The Applicant’s parents’ narrative from their 2007 refugee claim states that the Applicant left home in 2001 and had not been in contact with them since leaving home. The Board takes issue with the Applicant’s claim during oral testimony that he lived in the same city as his parents until they left Colombia, at which time he moved from Medellin to Bogota. He claimed that he never lost contact with his parents until they left Colombia. The Applicant was unsure why his parents indicated in 2007 that they had lost contact with him. The Board notes that the Applicant’s oral testimony about not losing contact with his parents contradicts not only his parents’ narrative but also the Applicant’s own written narrative. The Applicant’s narrative states that he lost contact when he moved to Bogota before his parents left. The Board accepts that these contradictions are peripheral to the Applicant’s allegations, but finds that they contribute to overall credibility concerns.
[18] Regarding the testimony of the Applicant’s brother, the Board finds him to be credible because his testimony was straightforward, free of embellishment, and without inconsistency or contradiction. But the Board finds that the brother’s testimony was based on information provided by the Applicant rather than direct observation. Since the Board had already decided that the Applicant lacked credibility, it places no weight on evidence that relies on the Applicant’s truthfulness.
[19] The Board finds that the Applicant’s brother’s profession as an RCMP officer in Canada did not put the Applicant at risk of harm in Colombia in the past and would not do so in the future. The Board notes that the Applicant’s brother left Colombia nearly twenty years ago. He joined the RCMP in 2010. And since the Board does not find the Applicant credible, no credible evidence suggests that any armed group linked the Applicant to his brother. The Board therefore finds that no threats were made to the Applicant on account of his brother’s occupation.
[20] In conclusion, the Board states that it places no weight on any of the Applicant’s oral testimony or written claims. The Applicant’s inability to provide any reliable evidence prevents the Board from rendering a favourable decision.
IV. ISSUES
[21] The Applicant raises the following issues in this application:
Is the Board’s credibility finding unreasonable?
Is the Decision’s handling of the principle of comity unreasonable?
Is the Decision’s lack of a separate s 97 analysis unreasonable?
V. STANDARD OF REVIEW
[22] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[23] The standard of review applicable to the RPD’s credibility determinations is reasonableness. See Diaz v Canada (Citizenship and Immigration), 2016 FC 1343 at para 10 [Diaz].
[24] The RPD’s application of comity to the facts and the decision not to conduct a separate s 97 analysis are questions of mixed fact and law which are also reviewed under a standard of reasonableness. See Dunsmuir, above, at para 53.
[25] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[26] The following provisions of the Act are relevant in this application:
Convention refugee
Définition de réfugié
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
VII. ARGUMENT
A. Applicant
(1) Credibility
[27] The Applicant submits that the Decision is unreasonable because it sets out some, but not all, of the Board’s credibility concerns when making its overall credibility determination. The Federal Court of Appeal has held that the reasons for rejecting a refugee claim on credibility grounds must be given in “clear and unmistakable terms”: Armson v Canada (Minister of Employment & Immigration) (1989), 101 NR 372 (WL Can) at para 20 (FCA) [Armson]. The reasons must allow a claimant to know why the claim has failed. See Mehterian v Canada (Minister of Employment and Immigration), [1992] FCJ No 545 (QL) (CA) [Mehterian]. This Court has stated that “if the Board believes only a part of the applicant’s story it is obliged to say how much was accepted and how much rejected”: Ramirez v Canada (Minister of Citizenship & Immigration) (1999), 166 FTR 158 (WL Can) at para 3 (TD). The Decision expressly states that it will only discuss a few of the Board’s credibility concerns. The Applicant says that this does not allow him to properly address all credibility issues in an appeal.
[28] The Applicant also says that the Board’s implausibility finding about the nature of the threats he faced relies on the paramilitary group who threatened him acting rationally. The Applicant asserts that the AUC is widely considered a terrorist group. This Court has accepted that “terrorist groups often act irrationally”: Yoosuff v Canada (Minister of Citizenship and Immigration), 2005 FC 1116 at para 8. See also Selliah v Canada (Minister of Citizenship and Immigration), 2006 FC 493 at para 6; Franco Taboada v Canada (Citizenship and Immigration), 2008 FC 1122 at para 35; Londono Soto v Canada (Citizenship and Immigration), 2008 FC 354 at para 26 [Londono Soto]; Builes v Canada (Citizenship and Immigration), 2016 FC 215 at para 17. The Board did not find it plausible that the group that threatened the Applicant would be satisfied with him leaving Colombia because it neither benefited them nor amounted to a reprisal. The Applicant says that to base an adverse credibility finding on the plausibility of the actions of terrorists is unreasonable.
[29] The Applicant submits that the Board erred by basing a credibility finding on its perception of the reasonableness of the Applicant’s response to being threatened. The Board found it implausible that the Applicant did not take the first call seriously, given his stated fear for his life and the caller’s mention of the Applicant’s family. Plausibility findings should only be made in the clearest cases. The Board should consider that “refugee claimants come from diverse cultures, and actions which appear implausible when judged from [a Canadian perspective] might be plausible when considered from within the claimant’s milieu”: Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7 [Valtchev]. Because an implausibility finding depends on the Board’s perception of rational behaviour, it is an error for the Board not to refer to relevant evidence that could potentially refute an implausibility conclusion. See Valtchev, above, at para 8, quoting Leung v Canada (Minister of Employment & Immigration) (1994), 81 FTR 303 (WL Can) at para 15 (TD), quoted in Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937 at para 14. A plausibility finding that does not rely on a reliable and verifiable evidentiary base is “unfounded speculation”: Aguilar Zacarias v Canada (Citizenship and Immigration), 2012 FC 1155 at para 11. The Applicant says that it is not outside the realm of possibility that he could have an ongoing fear for his life, yet might not have reported the first call to the police. The Applicant may have become more afraid after the second call. Therefore, the Applicant submits that the Board’s implausibility finding is unreasonable.
[30] The Applicant also submits that the Board’s concerns over discrepancies about whether the first caller identified himself as AUC should not have been material to the Board’s credibility determination. Given the AUC’s past targeting of the Applicant’s family, the Applicant says it was reasonable for him to presume that the AUC were the perpetrators and forget whether the caller identified himself. The Applicant says that the Decision focuses on minor, explicable inconsistencies in making its adverse credibility finding. This violates the instruction that the Board is not to be zealous to find a claimant not credible or engage in a microscopic examination of the evidence. See Jamil v Canada (Minister of Citizenship and Immigration), 2006 FC 792 at para 24. The Applicant says that his belief that the AUC had targeted him is what is relevant to the Decision.
[31] The Applicant submits that the Board’s adverse credibility finding is partially based on technical, rather than substantive, discrepancies which are immaterial to his claim. The Board finds that the Applicant lied about the level of education he attained and that this was a deliberate attempt to mislead the Board. The Applicant says that his education level is immaterial and that the perceived discrepancy could simply be the result of ambiguities in translation. This Court has held that it is unreasonable to reject claims based on immaterial, secondary issues when the Board ignores important parts of the claimant’s case. See Simba v Canada (Minister of Citizenship and Immigration), 2000 CanLII 14777 (FCTD) [Simba], quoting Mahathmasseelan v Canada (Minister of Employment & Immigration) (1991), 15 Imm LR (2d) 29 (WL Can) at para 9 (FCA). See also Owusu-Ansah v Canada (Minister of Employment & Immigration) (1989), 8 Imm LR (2d) 106 (FCA); Armson, above, at para 24. The Applicant says that the Decision also focuses on a minor discrepancy between the Applicant’s testimony and his parents’ written narrative, even though the Board acknowledges that the discrepancy is immaterial to the Applicant’s claim.
[32] The Applicant submits that the Board’s decision to base its credibility finding on immaterial inconsistencies and unspoken grounds results in the Board ignoring corroborating testimony, country condition evidence, and the Applicant’s testimony that supports his claim. The Applicant also says that the Board only considered past persecution and failed to conduct a forward-looking assessment of the risk the Applicant faces if returned to Colombia. Despite finding the Applicant’s brother credible, the Board ignores the Applicant’s brother’s testimony about the fear the Applicant communicated to him and his belief, based on his knowledge of the drug trafficking trade, that the Applicant was at risk. Even where the Board does not find a claimant credible, it should still expressly assess evidence which could affect the claim. See SS v Canada (Minister of Citizenship and Immigration) (1999), 167 FTR 130 at para 11 (TD) [Seevaratnam]. To reach a conclusion based on certain evidence and then dismiss the remaining documentary evidence as not genuine because it is inconsistent with that conclusion inverts the reasoning process. See Chen v Canada (Citizenship and Immigration), 2013 FC 311 at para 20 [Chen].
[33] The Applicant says that the National Documentation Package for Colombia provides extensive corroboration which substantiates the Applicant’s testimony. The Applicant points to the United Nations High Commissioner for Refugees’ “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia” (September 2015) [Guidelines]. The Guidelines describe ongoing risks from paramilitary groups in Colombia and how family members of targets are also at risk of threats and extortion. This aligns with the Applicant’s testimony about being targeted. This Court has held that “when the [Board] refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact”: Cepeda-Gutierrez v Canada (Minister of Citizenship & Immigration) (1998), 157 FTR 35 (WL Can) at para 17 (TD). See also Goman v Canada (Citizenship and Immigration), 2012 FC 643 at para 13; Hernandez Montoya v Canada (Citizenship and Immigration), 2014 FC 808 at paras 36-37; Gopalarasa v Canada (Citizenship and Immigration), 2014 FC 1138 at para 39. Furthermore, even where a claimant’s subjective fear of persecution is not found credible, if the claimant’s identity is not in dispute the objective evidence of country conditions may establish that the claimant’s particular circumstances make him or her a person in need of protection. See Fixgera Lappen v Canada (Citizenship and Immigration), 2008 FC 434 at para 27; Maimba v Canada (Citizenship and Immigration), 2008 FC 226 at para 22.
[34] The Applicant also submits that any perceived delay in his decision to leave Colombia should not have impacted the Decision. While the Applicant’s siblings did leave between 1997 and 1999, and his parents left in 2006, the Applicant alleges that he was only directly targeted in 2015. The Decision characterizes this as a delay that was “egregious” and finds that it discredits the Applicant’s allegations. The Applicant points to Ibrahimov v Canada (Minister of Citizenship and Immigration), 2003 FC 1185 at para 19, where Justice Heneghan held that “when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution.” See also Londono Soto, above, at para 31.
(2) Comity
[35] The Applicant notes that his siblings and parents were all accepted as Convention refugees in Canada. The decisions in both those claims and the Applicant’s parents’ written narrative were all submitted to the RPD. In these circumstances, the Applicant says that the Board had a duty to explain the reasons for departing from previous findings of the RPD. In Mendoza v Canada (Citizenship and Immigration), 2015 FC 251 at para 25 [Mendoza], Justice Zinn held that “it is incumbent on the RPD Member when reaching a different result than was previously reached by another Member regarding a claim by a family member under similar circumstances, to explain why a contrary result was reached.” See also Djouah v Canada (Citizenship and Immigration), 2013 FC 884 at para 25 [Djouah].
(3) Section 97
[36] The Applicant submits that the Decision’s analysis under s 97 of the Act errs because the Board stops its analysis at credibility and does not consider whether the Applicant faces an objective risk. The Applicant says that the test under s 97 of the Act is entirely objective as it is based on the claimant’s profile and the documentary evidence before the Board. Therefore, even if the claimant is primarily disbelieved, the Board is obliged to consider whether the claimant is at risk based on its finding regarding the claimant’s profile. The Applicant says that the Board’s finding that “the claimant did not provide any reliable evidence to support his allegations” blatantly ignores testimony from a witness that the Board found credible, country condition evidence, and the Applicant’s family members’ positive decisions.
[37] In Odetoyinbo v Canada (Citizenship and Immigration), 2009 FC 501 at para 7, Justice Martineau held that “[i]t is well settled that an adverse credibility finding, though it may be conclusive of a refugee claim under section 96 of the [Act], is not necessarily conclusive of a claim under subsection 97(1).” See also Bouaouni v Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at para 41. The Applicant says that doubts about a claimant’s credibility do not relieve the RPD of the responsibility of basing its determination on all of the evidence. See Mensah v Canada (Minister of Employment and Immigration), [1989] FCJ No 1038 (QL) (CA); Baranyi v Canada (Minister of Citizenship & Immigration), 2001 FCT 664 at para 14; Voytik v Canada (Minister of Citizenship and Immigration), 2004 FC 66 at para 20. Finding a claimant not credible means only that the claimant’s testimony cannot be relied on; it does not mean that the facts attested to are untrue. This is illustrated by Attakora v Canada (Minister of Employment & Immigration) (1989), 99 NR 168 (WL Can) at para 13 (FCA), where the Federal Court of Appeal held that “[w]hether or not the applicant was a credible witness… that does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment.”
[38] The Applicant therefore submits that the Board’s conclusion under s 97 of the Act is unreasonable because it fails to consider whether his removal to Colombia would subject him to the risks stipulated in s 97. The error is exacerbated by the Board’s failure to discuss the documentary evidence which detailed the risks the Applicant would be subject to upon return. The Applicant says that the absence of a s 97 analysis alone requires the matter to be returned to the RPD for reconsideration. See e.g. Ayilan v Canada (Citizenship and Immigration), 2008 FC 1328 [Ayilan].
B. Respondent
(1) Credibility
[39] The Respondent submits that the Applicant’s suggestion that the RPD must set out every credibility concern is not supported by the jurisprudence. The Applicant relies on case law which says that the RPD must set out in its reasons why it does not find a claim to be credible in clear and unmistakable terms. See Armson, above, at para 20; Mehterian, above, at para 2. The Respondent says that the Applicant is arguing about the adequacy of reasons. Since the Decision allows the Applicant to know why his claim failed, the reasons are adequate in this case. The Respondent notes that the Applicant does not claim to not understand the Board’s credibility concerns. Instead, the Applicant says that he cannot address other, unstated credibility concerns.
[40] The Respondent says that there is no merit to the Applicant’s argument because the Decision is based on a cumulative credibility assessment and lists seven specific credibility concerns. In the Decision, these concerns appear under the headings “Delay in Leaving,” “Nature of Threats,” “Attempts to leave Colombia,” “Reporting to the Authorities,” “Agents of Persecution,” and “Miscellaneous Discrepancies” regarding education and the Applicant’s parents. The Respondent says that a review of the transcript demonstrates the reasonableness of the Board’s concerns and that the Decision does include the Board’s key credibility concerns. This is further demonstrated by the Applicant’s former counsel’s post-hearing submissions which addressed some of these issues.
[41] The Respondent says the Board’s concern over the Applicant’s delay in leaving Colombia is reasonable. The Applicant cites cases that found concerns over delay unreasonable where the claimant alleged cumulative incidents of persecution. The Applicant does not allege cumulative incidents of persecution. When questioned about why he did not take steps to leave Colombia until 2012 after his parents’ departure in 2006, the Applicant explained that in 2012 his business had closed and his economic situation declined. But he denied seeking to leave for economic reasons and maintained that he had always remained afraid.
[42] Further, the Respondent says that the Board’s concerns extended to the Applicant’s explanation for the delay. The Applicant said that he did not leave Colombia in the 1990s so that he could look after his parents, yet his parents left in 2006. It was also unclear whether the Applicant had been threatened along with his siblings in the 1990s.
[43] The Respondent submits that the Board’s implausibility finding about the nature of the threats allegedly faced by the Applicant is not unreasonable. The AUC extorted money from the Applicant’s parents. The Applicant alleged that a caller claimed that the Applicant’s brother had caused them to lose money. The Board found it implausible that the AUC would demand that the Applicant leave Colombia because his departure would not benefit the AUC. Rather than speculation, the Respondent says that the Board drew a common-sense inference about the motives of the agents of persecution. See Sandirasekaram v Canada (Citizenship and Immigration), 2015 FC 1005 at paras 10-11.
[44] Even if the Board’s finding is speculative, the Respondent notes that in Varatharasa v Canada (Citizenship and Immigration), 2017 FC 11, Justice Gleeson agreed that it was not a claimant’s responsibility to explain the agent of persecution’s actions, but still held that the decision was reasonable based on the officer’s other concerns.
[45] The Respondent says that it was open to the Board to find that the Applicant was not credible because of his failure to report the first phone call to Colombian authorities. The Applicant says that this finding was based on the Board’s own perception of what constitutes reasonable behaviour, and that it was possible for the Applicant to have an ongoing fear of persecution yet not report the call. The Respondent says that the question is not the reasonableness of the Applicant’s response to the threats because the test on review “is not a listing of the entirety of reasonable possibilities, but rather, whether the RPD’s findings were reasonably open to it.” The Respondent submits that this is similar to Diaz, above, at paras 13-14, where the RPD based credibility concerns, in part, on the claimant’s failure to disclose an alleged threat to his wife.
[46] The Respondent submits that the Board’s concern about inconsistency in the Applicant’s story as to whether the callers identified themselves is reasonable. The Respondent suggests that the Applicant’s characterization of these inconsistencies as microscopic misapprehends the Board’s concern. The Applicant testified that the caller in 2016 identified himself as AUC, then added that the first caller also specifically identified himself as AUC. This contradicted the Applicant’s written narrative which stated that the first caller’s identity was unknown. When asked to explain this inconsistency, the Applicant’s explanation was that he had perceived the first caller to be AUC. The Respondent says that concern over these inconsistencies was reasonably open to the Board.
[47] The Respondent notes that the Board also identified concerns over the Applicant’s testimony about when he decided to leave Colombia. The Applicant’s written narrative stated that he had already purchased a ticket to Mexico before reporting the 2016 call to Colombian authorities. In oral testimony, he stated that he decided to leave when police failed to provide protection after he made the report. When the Board asked the Applicant to explain this contradiction, he stated that he decided to leave after he received the 2016 call. Later, when questioned by his counsel, the Applicant again stated that that he decided to leave after he went to the authorities.
[48] The Respondent submits that the Board did not make credibility findings based on immaterial or technical discrepancies. The Board signals that concerns over the Applicant’s level of education and inconsistency with his parents’ claim are additional credibility concerns by labelling them “Miscellaneous Discrepancies.” The Respondent notes that the Applicant argues that he is prejudiced by the Board’s failure to mention every credibility concern, yet also faults the Board’s inclusion of concerns which the Applicant says are irrelevant. The Board explains that its discussion of the education concern is relevant because the issue arose in response to consideration of an internal flight alternative [IFA] in Bogota. The Respondent says that it was reasonably open to the Board to find that this was a deliberate attempt to mislead. The Board did not accept the Applicant’s explanation that he had only completed three years of courses over five years of attending school. The Respondent notes that the Applicant’s brother’s testimony supported the finding that the Applicant had the higher level of education. The Respondent submits that the cases relied on by the Applicant to suggest that the Board erred by considering irrelevant concerns are instances where the RPD failed to consider more important facts, which is distinguishable from the present case.
[49] Regarding inconsistency with the Applicant’s parents’ claim, the Respondent notes that the Board acknowledges that the inconsistency is not central to the Applicant’s claim. But the Respondent submits that it remained open to the Board to make findings about the Applicant’s overall credibility based on clearly inconsistent statements.
[50] The Respondent submits that having found the Applicant not credible, the Board was not obliged to consider the remaining relevant evidence. The Respondent says that the Applicant’s reliance on Seevaratnam, above, is misplaced. This Court considered similar arguments in Joseph v Canada (Citizenship and Immigration), 2011 FC 548 at para 12, and held that where “the Board’s concerns about the credibility or trustworthiness of the claimant’s evidence causes it to doubt the very essence of the claim… the Board need not look to general country condition evidence to determine whether the claim was well-founded.” Similarly, Chen, above, is distinguishable as the Board in that case disbelieved the claimant’s testimony because it was not supported by the country condition evidence. The Respondent says that Chen has no application where the concern is the Applicant’s inconsistent testimony.
[51] The Respondent also points out that the Board explains that, despite finding the Applicant’s brother to be credible, his testimony was not based on first-hand knowledge. Therefore, the Board’s conclusion that the testimony was not credible evidence in support of the Applicant’s claim is reasonable.
[52] The Respondent submits that documentary evidence on its own cannot support a claim for protection where no credible evidence links the claimant to the agents of persecution. Since the Board did not find the Applicant’s evidence linking him to the threats credible there was no need to consider whether the documentary evidence applied to the Applicant. See Rahaman v Canada (Citizenship and Immigration), 2007 FC 1008 at para 17 [Rahaman].
(2) Comity
[53] The Respondent submits that the Board did not need to explain why it found the Applicant’s claim different from his family members’ claims because the facts of the Applicant’s claim are clearly different. Unlike the cases relied on by the Applicant, this was not an instance of similar claims submitted at similar times. In Mendoza, the claimant brothers’ refugee claims were based on largely similar facts. In Djouah, the claimants were all members of the same dance troupe and made claims based on the same facts and evidence. The Respondent also notes that comity applies to points of law and does not apply between tribunal decisions and findings of fact. See Nwabueze v Canada (Citizenship and Immigration), 2017 FC 323 at para 9.
[54] The Respondent says that there was no basis for the Board to consider the Applicant’s claim as being similar to that of his siblings and parents. The Applicant’s siblings’ and parents’ claims recount them being threatened at gunpoint. The Applicant’s parents also faced demands for money. Further, the Applicant submitted his claim nearly twenty years after his siblings left Colombia and a decade after his parents left.
(3) Section 97
[55] The Respondent submits that the Board was not required to conduct a separate analysis under s 97 of the Act. In Lopez v Canada (Citizenship and Immigration), 2014 FC 102 at para 41 [Lopez], Justice Kane held that “a negative credibility finding is sufficient to dispose a claim under both sections 96 and 97, unless there is independent and credible documentary evide