Friday, October 01, 2010

Diaz – refugee board fails in credibility analysis

Diaz v. Canada (Citizenship and Immigration), 2010 FC 797

In a case of a family from Colombia, Justice Zinn found that the RPD’s decision on negative credibility could not stand. The principal applicant testified that she could not be sure if the agents of persecution were FARC or a drug cartel, but this was not relevant to an assessment of risk under s. 97 (para. 19). The Board could have found her testimony regarding the murder of her husband’s co-worker to be not relevant, since she was not sure of the perpetrator, but the Board was wrong to call this “embellishment” (para. 20). The Board also made several straightforward factual errors, which while not reviewable in and of themselves, “cast some doubt on the thoroughness and accuracy of the Board’s assessment in its totality” (para 21). The Board focussed on whether or not FARC was targeting the applicants, to the exclusion of a complete analysis of the case and the risks. The Board also erred in finding there was an IFA to Colombia. Finally, the Board relied on cases and on the argument that the applicants were exposed to generalized risk, but failed to make an explicit finding of generalized risk.

Judge: Justice Zinn

Date decided: August 4, 2010

Counsel: Jack Davis for Applicants, Ladan Shahrooz for Minister.

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