Date: 20050929
Docket: IMM-10400-04
Citation: 2005 FC 1339
Toronto, Ontario, September 29, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
RAUL EZETA RUIZ
ANA MARIA BADA MANCILLA
JORGE ALBERTO SILVERA BADA
RENZO MAURICIO SILVERA BADA
DAPHNE CLAUDIA EZETA BADA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of adecision of the Refugee Protection Division ("RPD") dated November 29, 2004, wherein the Applicants' claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicants, a husband and wife, their daughter and the wife's two sons are citizens of Peru. The principal Applicant, Raul Ezeta Ruiz, claims a well-founded fear of persecution on account of his political opinion and membership in the Peruvian Workers' Union (the "Union"). He testified that his involvement in the Union led to his arrest, detention and torture by the Peruvian police. His wife and children based their claims on the same facts alleged by the principal Applicant.
[3] In support of his prospective claim for protection, the principal Applicant presented the RPD with his own evidence of his past torture by the police in Peru, and cogent supporting evidence including photographs of scars on his body taken by an Immigration Officer at the Port of Entry, and also a report from a dentist describing damage to his teeth and mouth.
[4] In addition, the principal Applicant filed in evidence a report from a psychiatrist in which the principal Applicant's wife gives hearsay, but potentially admissible evidence of the rape she suffered by agents of the state in Peru and also contains an expert opinion that five months before the hearing before the RPD she was suffering from Post-Traumatic Stress Disorder as a result of her reported ordeal. The report states as follows:
In July 2000, while her husband went to find out about the election results at the local union hall, two plain-clothes armed men entered forcibly into her home, pushed her into a bedroom and threw her to the floor. She was told her husband was again in detention and would be killed. She was beaten, her hair was pulled and she was pointed with a gun while the men talked to someone through a radio. She was then fondled and raped by both men. Before they left, they told her that her husband would be killed if she talked to anyone about what happened to her.
[...]
As a result of the extremely traumatic experiences described above, Ms. Ezeta has developed significant physical and emotional sequelae. She lives in constant fear of further persecution and is obsessed with the safety of her children, and reports that taking care of them is her main objective in life.
She has symptoms of anxiety and depression and a very severe sleep disorder. She feels anxious, restless and sad with frequent crying episodes. During the night she becomes very scared and has difficulties falling asleep. When she sleeps, she has terrifying nightmares consisting of persecution and usually wakes up hearing footsteps coming up the stairs, so every night she locks her children bedroom door to protect them.
She is fearful of leaving her home alone and cannot trust people and as a result she is very socially isolated. There is also a feeling of anger and frustration towards her husband whom she blames for the situation that they are in, but she promptly regrets feeling this way and becomes even more sad and anxious.
[...]
She denies feeling suicidal, however she reported that she would rather die than returning to Peru where she feels the entire family could be killed.
(Tribunal Record, p. 381.)
It is arguable that the report provides evidence capable of corroborating the principal Applicant's claim of prospective fear of persecution. That is, the hearsay statements of fact from the principal Applicant's wife respecting the rape can be accepted as true by the RPD under s.182(1) of IRPA. In addition, the psychiatric evaluation provided in the report can be accepted as corroboration of the statements of fact.
[5] The principal Applicant also provided objective third-party evidence of beatings and torture by police forces in Peru as support for the truthfulness of the evidence of his experiences, and as support of his fear of the possibility of his persecution, and substantial risk of torture, should he return to Peru.
[6] The issue in this judicial review is whether the approach adopted by the RPD in analyzing the evidence is in fundamental error. In my opinion, for the reasons which follow, I find that it is.
[7] In rendering its decision, the RPD first makes a hotly contested negative credibility finding against the principal Applicant as a result of a focus on discreet features of the principal Applicant's testimony, and then, based on this negative finding, rejects other very cogent documentary evidence tendered by the principal Applicant. The RPD's analysis is as follows:
All those elements make us think that the principal claimant's problems suffered in his country are not credible. We did not believe them. Not having believed the principal claimant's problems, we also do not believe his wife's and children's problems since they base their claims on the same facts alleged by the principal claimant.
Not having believed their problems, we do not give any probative value to the following documents. First of all, document C-6 is described as a psychiatric report. However, all the findings and conclusions of the psychiatrist are based on a "one-hour session interview". Mrs. Ezeta was not subjected to any test, and there was not other interview than this "one-hour session". The psychiatrist wrote what the claimant told her. The psychiatrist mentions certain symptoms such as "anxiety and depression and a very severe sleep disorder. She feels anxious, restless and sad with frequent crying episodes... She is fearful of leaving her home alone and cannot trust people and as a result she is very socially isolated..." The claimant may suffer from those symptoms, but they are not related to the problems mentioned in her husband's narrative, because we did not believe them. As for the document deposited as exhibit C-8, this document talks about the principal claimants's severe dental problems. Again, we feel sorry for the principal claimant's dental problems, but we do not think they are related to the problems mentioned in the narrative and in his testimony, because we did not believe them. The letter deposited as exhibit C-9 comes from a relative, as the principal claimant mentions in his narrative. It comes from an interested person, and as we did not believe the claimants' problems, we do not give probative value to the exhibit C-9. We already talked about exhibit C-10 earlier in our decision, and we do not give it any probative value.
We do not believe that the principal claimant was the secretary of the "Workers' Union of Peru". We do not give any probative value either to the document deposited as exhibit C-11. This document does not look official either.
As for the document deposited as exhibit C-12, it only demonstrates that this person is dead. However, we cannot make link between this death and the claimants' problems because we did not believe them.
[Emphasis added]
(Tribunal Record, p. 10.)
[8] With respect to the RPD's analysis, Counsel for the Applicants argues as follows:
[...] The Board Member's failure to mention objective evidence that directly contradicted its findings, and failure to explain why different evidence was preferred over objective evidence, sworn testimony of the principal Applicant and his wife and photographic evidence of the scars of torture, amounts to a reviewable error. The Board Member had no regard for relevant evidence that went directly to the issues of the Applicants' credibility, and the plausibility of torture which gave rise to the principal Applicants' well-founded fear of persecution.
(Applicant's Reply, para. 5.)
I agree with this argument, but I would go further. I conclude that, from the words used in the reasons, the RPD used a linear approach in evaluating the evidence submitted by the principal Applicant. I find that the use of this linear approach denied natural justice to the principal Applicant for two reasons.
[9] First, it is only fair and reasonable for parties to litigation to expect that the decision-maker will consider the evidence in its entirety, with an open mind, before making findings about the value to be placed on critical elements of the evidence. For the general proposition that the evidence must be considered in its entirety see Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). In the present case, I find that the RPD was in error in not considering the whole of the evidence, including the wife's rape evidence and the cogent independent evidence about the apparent effects of the torture and rape in the form of photographs and reports, before making the critical finding of negative credibility against the principal Applicant (also see Gonzalez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 422, and Herabadi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1729).
[10] Second, I find that the RPD was in error by rejecting evidence which comes from sources other than the testimony of the principal Applicant simply on the basis that the principal Applicant is not believed. In my opinion, each independent source of evidence requires independent evaluation. This is so because the independent sources might act to substantiate an Applicant's position on a given issue, even if his or her own evidence is not accepted with respect to that issue.
[11] With respect to the RPD's decision on the question of the plausibility of the evidence, I wish to make a comment.
[12] The RPD rejected the Applicants' evidence of persecution, and in the course of doing so, made the following implausibility finding:
The principal claimant also told us that he was receiving very threatening phone calls. The first one would have started in October 1999, and according to him "it did not stop until July 2000". He added that he would receive about "3, 4, 5 phone calls a week", and that he asked his children not to answer the phone. He also said that the persons calling were threatening him of death, as well as his family. Notwithstanding all those threatening phone calls, the principal claimant and his family continue to live in the same house, moving only in July 2000. Also, he told us that he was afraid for his life and his family's life since July 2000. However, he continues to live in Peru up to November 2001, 16 months after starting to be so scared for his life and his family's. All of this is not compatible with the behaviour of somebody who fears for his life and his family's life or who would be afraid to be subjected to a risk of cruel and unusual punishment if sent back to his country.
[Emphasis added]
(Tribunal Record, p. 9)
[13] With respect to making negative credibility findings in general, and implausibility findings in particular, Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, states the standard to be followed:
6. The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.) At 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
7. A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22].
[14] In the present case, I find that the RPD has not met the standard set out in Valtchev by simply stating that the principal Applicant's behaviour does not concur with behaviour that would be expected of "somebody who fears for his life and his family's life" without clearly stating what behaviour could be reasonably expected in the particular life circumstances of this family at the time.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10400-04
STYLE OF CAUSE: RAUL EZETA RUIZ
ANA MARIA BADA MANCILLA
JORGE ALBERTO SILVERA BADA
RENZO MAURICIO SILVERA BADA
DAPHNE CLAUDIA EZETA BADA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 28, 2005
REASONS FOR ORDER
AND ORDER: CAMPBELL J.
DATED: SEPTEMBER 29, 2005
APPEARANCES:
Mendel Green FOR THE APPLICANTS
Anshumala Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN AND SPIEGEL
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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