[1] This is the second refugee claim by the Applicants' family: the first was rejected in 1993. The Applicants were denied refugee status in the first instance because of the availability of state protection and an IFA in their home country of Argentina.

[2] The current decision of the Refugee Protection Division of the Immigration Board (the "Panel") turned principally on credibility. The Panel did not accept the male applicant's evidence as to his union activities; the sufficiency of his explanation for reavailment and his failure to file for refugee status while in the United States; nor his claim of the absence of state protection and an IFA.

[3] Given that the standard of review of credibility findings by the Panel is patent unreasonableness, the applicant is unable to establish that these findings meet this criterion.

Background

[4] The Applicants came to Canada in 1990 where they sought refugee status on the basis of political persecution. That claim was rejected in 1993 and the family returned to Argentina.

[5] Upon returning to Argentina, Mr. Perez says that he became involved in union activities and leadership. As a result of these activities and his union leadership, in 1996 his house was attacked, twice, and his motorcycle stolen. Mr. Perez complained to the police who took note of his complaint and assigned a patrol car to circulate in his area.

[6] In 1997 Mr. Perez says that his mother was threatened, his daughter stopped and questioned and that he was personally threatened.

[7] Since 1996 there have been 12 attacks on the Perez' home, it has been vandalized and items stolen. Mr. Perez claims that he has been grabbed off the street, robbed, interrogated and drugged. All of his troubles were attributed to his union activities.

[8] Finally Mr. Perez fled to Canada via the United States when he was told that he had to wait 3 months before entering this country; he immediately returned to Argentina where he stayed for 5 months.

[9] By way of explanation for his further delay in seeking refugee status, he says that the events of September 11, 2001 effectively prevented him from coming to Canada, particularly via the United States.

[10] Lastly he claims that he is not safe anywhere in Argentina because government authorities corroborate with criminals and members of the Justicialist Party.

[11] The Panel questioned Mr. Perez's credibility. They found his explanation for delay in coming to Canada and for not claiming refugee status in the United States to be insufficient. The Panel doubted the nature and extent of his union involvement particularly as he was unable to produce even his union membership card. Lastly the Panel held that the Applicants had not established that state protection was unavailable: the police, in fact, made efforts to provide protection to him.

Analysis

[12] The Applicants say that the Panel erred in its credibility findings. It is well recognized that the standard of review for this issue is patent unreasonableness; was the Panel's credibility determination patently unreasonable?

[13] The Panel relied on four factors to reach its decision on credibility:

1. failure to claim refugee status in the United States given that the Applicants had been denied status previously in Canada;

2. failure to produce his union card: a matter which the Applicants' counsel says is pivotal (even at the Court hearing no one could point to evidence of union memberships);

3. the implausibility of Mr. Perez's story about union activities, threats and related events; and

4. Mr. Perez's reavailment for 5 months.

[14] Each one of these factors is relevant to the issue of credibility. There is a clear nexus between each of these factors and a finding of credibility. As such, it cannot be said to be patently unreasonable.

[15] The Applicants' claim that the Panel was biaised because it referred to the earlier decision denying them refugee status. As indicated in Lahai v. Canada (M.C.I.), [2002] F.C.A. 119, so long as the administrative tribunal treats the subsequent case as a de novo case, there is nothing wrong in referring back to an earlier related decision. This is exactly what occurred in this case.

[16] Finally, the Applicants have not shown any error in the Panel's conclusions related to state protection or on IFA in Argentina. As regards state protection, while Argentina has had its difficulties in the past, Mr. Perez was accorded direct police protection. As regards an IFA, the Applicants presented no evidence that an IFA is not available - the burden of proof on this issue rested with the Applicants.

[17] For all these reasons, this judicial review must be dismissed.

[18] The parties concur that there is no question to be certified.

"Michael L. Phelan"

J.F.C.

Toronto, Ontario

August 5, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5227-03

STYLE OF CAUSE: RUBEN GERARDO PEREZ

CECILIA NANCY DEGUER MADRID DE PEREZ

GABRIEL BENJAMIN PEREZ DEGUER

NAHIR EMMANUEL PEREZ DEGUER

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JULY 20, 2004

REASONS FOR ORDER BY: PHELAN J.

DATED: AUGUST 5, 2004

APPEARANCES BY:

Mr. Daniel M. Fine FOR THE APPLICANTS

Ms. Bridget A. O'Leary FOR THE RESPONDENT

SOLICITORS OF RECORD:

Daniel M. Fine

Barrister & Solicitor

Toronto, Ontario FOR THE APPLICANTS

Morris Rosenberg

Deputy Attorney General of Canada FOR THE RESPONDENT

FEDERAL COURT

Date: 20040805

Docket: IMM-5227-03

BETWEEN:

RUBEN GERARDO PEREZ

CECILIA NANCY DEGUER MADRID DE PEREZ, GABRIEL BENJAMIN PEREZ DEGUER, NAHIR EMMANUEL PEREZ DEGUER

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

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Perez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1080

Citations2004 FC 1080

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2004 FC 1080