Date: 20050317
Docket: IMM-9169-03
Citation: 2005 FC 367
BETWEEN:
GERARDO ELFIDIO NARANJO OCAMPO
ARGERY MENDOZA CASTILLO
BRANDON STEVEN MENDOZA CASTILLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 21, 2003, wherein the Board found the applicants not to be Convention refugees or "people in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Argery Mendoza Castillo (the principal applicant), Gerardo Elfidio Naranjo Ocampo and Brandon Steven Mendoza Castillo are citizens of Costa Rica. They allege a well-founded fear of
persecution by reasons of death threats made against them by Manuel Castillo, the individual accused of raping the principal applicant's sister, who was mentally challenged, in September 1995.
[3] Following this rape, the applicant's sister got pregnant and gave birth to a boy on May 31, 1996. This child's name is Brandon Steven Mendoza Castillo and is one of the applicants in the present case. He is in the legal custody of the two other applicants, but has not been adopted by them. An arrest warrant was issued on January 17, 1997, for the arrest of the rapist, however he was never found.
[4] The Board based its decision on a negative credibility finding. In that regard, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). The Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[5] In the case at bar, the Board specifically took into account the applicant's behaviour at the hearing. The transcript confirms to a certain extent the Board's impressions that the applicant's testimony was laborious and hesitant. This Court is in no position to review further those aspects which go to the applicant's demeanour, which the Board is uniquely positioned to assess (Anwar v. Canada (M.C.I.), [2002] F.C.J. No. 1434 (QL) (T.D.)).
[6] The Board may prefer documentary evidence from various sources to the testimony of a refugee claimant (Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (QL) (C.A.)) and may choose the documentary evidence it prefers (Victorov v. Canada (M.C.I.), [1995] F.C.J. No. 900 (QL) (T.D.)). It was well within the purview of the Board to not give any probative value to the document from the "Patronato Nacional de la Infancia", the document that the applicant obtained which would have allowed her to take Brandon out of the country. The Board did not receive any satisfactory explanation on how the applicant's sister, who according to other documents is mentally ill and could not even do basic additions, could sign such a document. This conclusion is not unreasonable.
[7] The reason the applicant claims that they did not complete the adoption procedure was because they were afraid for their lives and had to leave the country, yet they made no complaint to the police following the second threatening phone call by Manuel. Regardless of whether they thought the police could do nothing, if they were truly fearful they would have attempted to obtain protection from the State. It was not unreasonable for the Board to draw a negative inference from the applicants' lack of diligence in pursuing the complaint.
[8] Furthermore, when questioned as to whether he had any siblings, Brandon answered yes, yet could not remember their names since he had not seen them in a long time. The applicant's explanation for Brandon's answer was that Brandon was Christian and was therefore told that everyone is his brother and sister. The Board found this explanation unsatisfactory. It was not unreasonable for the Board to doubt this explanation as it brings into question the relationship between Brandon and the two other applicants.
[9] It is understandable that the applicant could have been nervous while testifying, and hesitant in answering some questions, however, the content of her testimony is not corroborated by the evidence presented in its support. There were far too many inconsistencies for the applicant's story to be credible and it is my view that the Board did not err in finding as it did.
[10] For all the above reasons, the intervention of this Court is not warranted and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
March 17, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9169-03
STYLE OF CAUSE: GERARDO ELFIDIO NARANJO OCAMPO, ARGERY MENDOZA CASTILLO, BRANDON STEVEN MENDOZA CASTILLO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 8, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: March 17, 2005
APPEARANCES:
Mr. Michael Goldstein FOR THE APPLICANTS
Ms. Simone Truong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Goldstein FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content