Date: 20060220
Docket: IMM-4257-05
Citation: 2006 FC 229
Ottawa,
Ontario, February 20, 2006
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
EDGAR GENARO GARCIA HIDALGO
SOCORRO DEL P CAMINO HACHA
PEDRO ANDRE GARCIA CAMINO
MARIA EDUARDA GARCIA CAMINO
EDGAR
ALEJANDRO GARCIA CAMINO
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated June 16, 2005,
denying the refugee claim of the applicant, his wife and their three minor
children on the grounds that they were not “Convention refugees” or “persons in
need of protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
FACTUAL BACKGROUND
[2]
The
applicants are citizens of Peru. They fear persecution in their country because
of the perceived political opinion of the principal applicant, who is a member
of the political party FRENATRACA (National
Front of Workers and Peasants). He acted as General Coordinating Officer of the
South-Zone region from 2000 to 2005. During the elections of January 2000,
Luis Caceres Velasquez, the founder of FRENATRACA, and his son, Roger Luis
Caceres Perez (collectively, the Caceres), were elected to the Arequipa
Department after a coalition was formed between FRENATRACA and FREPAP, another
political party. On July 25, 2000, at the swearing in, the Caceres changed
political allegiances and joined with the Peru 2000 party, the party in power,
whose leader was then Alberto Fujimori, the President in office at that time.
This allegedly had a negative impact on the life of the applicant and his
family because of his close ties with the Caceres. The principal applicant
alleges that he then became treated as a “defector”.
[3]
After the
new President Alejandro Toledo came into power on July 21, 2001, the situation
allegedly deteriorated. The political platform of the new President was then
based on his firm intention to fight the corruption in the former government of
President Fujimori. Hence, on March 5, 2002, the principal applicant
says that he began to receive anonymous phone calls. He received death threats
based on his membership in FRENATRACA. His vehicle was vandalized twice, first
in January 2003 and the second time on July 28, 2004. His children had to
change schools as a precautionary measure. Their eldest son began to suffer
from vitiligo, which his physicians attributed to the stress he endured at
school. Further, in an anonymous phone call received after July 28, 2004, the
applicant was told specifically that the time of the defectors and their allies
had come. In fact, the applicant had filed a complaint but the police did not
agree to investigate it because he could not specify the identity of the person
or persons involved.
[4]
When he
arrived in Canada, on September 28, 2004, the applicant declared to the
immigration officer that his problems had begun around January 2000, when Luis
Caceres Velasquez had left FRENATRACA. When Toledo was elected President, he
decided to pursue all of those who had worked with Fujimori, directly or
indirectly.
[5]
The
applicant filed two versions of his answer to question 31 of his PIF.
Specifically, the applicant filed a first version of this answer on or about
October 26, 2004. In this first version of his story, the applicant was
consistent with his first statements to the effect that he had been a victim of
President Toledo’s fight against those who, directly or indirectly, had
been associated with President Fujimori. At lines 36 to 38 of his story,
the applicant stated moreover that corruption charges had been brought against
the Caceres in October 2002. He did not however establish any connection
between the charges brought against these people and his own fear of
persecution. Further, it is worthwhile to point out that in this first version
of his PIF, the applicant did not refer to any specific fact involving him, in
relation to the corruption charges brought against the Caceres. For example, he
did not indicate that he could have information relevant to this matter.
[6]
At the
beginning of the hearing of April 18, 2005, the applicant filed an addition to
his answer to question 31 of his PIF, amending lines 36 to 38 of his story. In
this amendment, he mentions for the first time that as a coordinator for the
South-Zone region represented by the Caceres in Congress, he was aware that
they had accepted bribes to abandon the FRENATRACA-FREPAP alliance and join
Fujimori’s party. In this amendment, the applicant also established for the
first time a connection between his fear and the issue of the bribes received
by the Caceres. He stated for the first time that the Caceres had threatened
him as well as his family, because they did not want him to reveal what he knew
about them to the Peruvian authorities.
[7]
At the
hearing, the Board confronted the principal applicant with the above-mentioned
discrepancies. He admitted that he had not mentioned that he feared the Caceres
in his statement at the port of entry. He claimed that his nervousness was the
reason for his silence on that point. Indeed, he explained that he had not
indicated the risk the Caceres represented for him in the first version of his
answer to question 31 because even though Luis Caceres Velasquez had been at
trial when he wrote his story, he had not yet been convicted.
IMPUGNED DECISION
[8]
The Board
decided that the applicants were unable to satisfy the burden of establishing
that they had a well-founded fear of persecution or that they could face
serious risk if they were to return to Peru, because of the contradictions and
inconsistencies noted in their story.
[9]
With
regard to the two complaints brought by the principal applicant, the Board
noted that they did not allude to the fact that the applicant had been targeted
because he belonged to a group of defectors. Further, the Board alleged that
the applicant had changed his version of the facts with regard to the
persecutors’ identities.
GROUNDS FOR REVIEW
[10]
The
applicants submit that the Board erred in assessing the evidence. The evidence
established that the principal applicant’s fear of persecution is well founded
and that it stems from grounds relating to political opinion. Therefore, the
Board erred in requiring that the applicant establish the underlying reasons
for the persecutor’s death threats. Yet this was not the issue to assess,
especially since the threats could have come from different groups with
different motives for persecuting the applicant and his family.
[11]
The
applicants submit that the Board erred in finding that the documentary evidence
provided by the applicants was inconsistent because the complaints did not
mention that the principal applicant had been targeted based on his membership
in a defecting party. The applicants also allege that the Board should
not have found it odd that the applicant had changed his version of the facts
with regard to the persecutors’ identities. The Board determined that this
statement was inconsistent with his PIF and that the applicant’s explanations
were not very convincing. Yet, the contrary should be inferred. The newspaper
article found on the Internet, addressing the recent conviction of Luis Caceres
Velasquez for corruption, was an additional factor justifying the fear of
persecution on political grounds. The Board therefore incorrectly interpreted
the documentary evidence because this element established that Luis Caceres
Velasquez was involved in a case of corruption, as the principal applicant
stated.
[12]
Finally,
the applicants claim that the Board erred in law in determining the scope of Sheikh
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238
(F.C.A.), 71 D.L.R. (4th) 604. Relying on the decision in Foyet v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 1591 (F.C.T.D.) (QL), 187 F.T.R. 181, they argue, inter alia,
that the Board could not apply a general principle from this decision to a
matter that ought to have been addressed in the new legislative framework.
ANALYSIS
[13]
I
cannot accept any of the applicants’ arguments. They are essentially disputing
findings of fact. The standard of review that generally applies to credibility
issues is that of patent unreasonableness. In Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J.
No. 732 at paragraph 4 (F.C.A.) (QL), 160 N.R. 315, the Federal
Court of Appeal stated the following:
[W]ho is in a
better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review.
[14]
After
all, the Board was in the best position to assess the credibility of the principal
applicant; as the trier of fact it was entitled to assess the evidence and to
give it the weight that it deserved. According to the applicants’ learned
counsel, the Board erred in its assessment of the fear of persecution when it
asked the principal applicant to establish the facts underlying the
persecutor’s death threats. He submits that the Board should not have analysed
this question in its assessment of whether the fear of persecution was well
founded. I do not agree. It is clear here that it is rather in the context of
assessing the credibility of his story that the Board asked the principal
applicant this question.
[15]
According
to the applicants, the Board also erred in determining that the principal
applicant’s complaints did not at all allude to the fact that he was targeted
because he was a member of a deserting party. The Board’s explanations are
nevertheless explicit:
However, the
panel noticed that the complaints filed in P-7 and P-8 do not make any mention
of the fact that the claimant was targeted because he belonged to a
crossbencher party. In the complaint P-7, dated April 10, 2002, the principal
asylum claimant stated that he was perhaps the victim of members of his party
who were jealous of the fact that he had been named general co-ordinating
electoral officer. In the complaint P-8, dated July 20, 2004, the reasons
invoked by the principal asylum claimant are no clearer. He stated that he
does not know who made these threats towards his family and added that it is
probable that he was the victim of political backlash due to the fact that he
was a city councilor when Mr. Luis Caceres was the Mayor. The asylum claimant
was unable to reconcile the details of these two complaints with his PIF,
according to which he was targeted because of his ties to the crossbenchers.
[16]
In
my opinion, this last passage must be read as a determination bearing on the
principal applicant’s credibility rather than as a question bearing on the
appreciation of the facts, as the applicants’ counsel submits. Indeed, the
principal applicant himself had several theories regarding the reasons that
prompted the persecutor or persecutors to perpetrate acts against him and his
family. Taking into account the various statements of the principal applicant,
we must believe that it was reasonable for the Board to determine that the
principal applicant did not manage to reconcile the substance of his
complaints, his PIF and the content of his testimony at the hearing.
[17]
Whatever
the case may be, the Board could reasonably doubt the truthfulness of the
principal applicant’s story based on the serious inconsistencies regarding the
persecutors’ identities. In fact, he had failed to mention the identities of
the persons he claimed to fear until he had filed, at the hearing, an addition
to lines 36 to 38 of question 31 of his PIF. According to the principal
applicant, he only specified the persecutors’ identities. The Board believed,
for its part, that changing the persecutors’ identities amounted in the facts
to effecting a major change to his story. The Board’s position is not patently
unreasonable. After noting the principal applicant’s new statement and
attempting to obtain clarifications from him, the Board did not consider his
explanations very convincing. There is no basis to intervene on this point.
[18]
At
the end of its reasons, the Board refers to a passage from Sheikh:
I would add
that in my view, even without disbelieving every word an applicant has uttered,
a first-level panel may reasonably find him so lacking in credibility that it
concludes there is no credible evidence relevant to his claim . . . In other
words, a general finding of a lack of credibility on the part of the applicant
may conceivably extend to all relevant evidence emanating from his testimony.
[19]
The
applicants’ counsel argues that the Board erred in law in determining the scope
of Sheikh. The Board could not apply a general principle from that
decision to this matter. There was a great deal of documentary evidence in the
record. The authenticity of the exhibits was not at issue. There was nothing to
cast doubt on the principal applicants’ political activities. In Foyet, supra, raised by the applicants’ counsel, this Court
held that the Board cannot find that there is no credible basis for a
claim when it has before it independent and credible evidence. Yet, in this
case, the Board did not find that the claim had no credible basis. The
principles of Foyet are simply not applicable in this case. In any
event, any error by the Board in terms of the application of Sheikh does
not appear to me to be determinative in this case. This application for
judicial review must therefore fail.
ORDER
THE COURT
ORDERS that
the application for judicial review be dismissed. No question of general importance was
raised and no such question shall be certified.
“Luc
Martineau”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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