Date: 20020712
Docket: IMM-3917-01
Neutral citation: 2002 FCT 784
BETWEEN:
RICARDO FELIPE HUARCAYA GARCIA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The applicant Ricardo Garcia, a citizen of Peru, 20 years of age, was refused refugee status by the Refugee Division (the panel) in its decision of July 19, 2001, because the panel did not believe the story of persecution he presented.
[2] His account is not complicated. He fears the Peruvian army because, he says, on May 13, 2000, during his mandatory military service, he saw Lieutenant Garcia fire on a wounded man who was being helped at that point by Sergeant Alvan, and Mr. Garcia had noted that this man was losing a lot of blood.
[3] He was later told by the garrison commander that if he kept his mouth shut nothing would happen to him.
[4] On June 20, 2000, the applicant met with Sergeant Alvan to discuss the situation. Lieutenant Garcia and four soldiers arrived and took them to the "hole" for punishment and torture. The applicant says he lost consciousness and woke up in a military hospital.
[5] At the end of his military service, Lieutenant Garcia told him in a threatening voice that he would be watching him.
[6] The applicant fled Peru after being told by his friend Olivares, a member of the Peruvian army, (1) that several officers, including Lieutenant Garcia, had become very worried about investigations by journalists concerning disappeared persons; and (2) that during a meeting he had heard that the Peruvian army wanted to eliminate any evidence that might incriminate them, and one of the persons mentioned by Lieutenant Garcia was the claimant, and that it would be best to get him to disappear, as was the case with Sergeant Alvan.
[7] The day after his flight (he hid at the home of one of his uncles before taking the plane to Canada), some soldiers went to his parents' home and told them they wanted to speak to the claimant about a confidential matter and that he should report to the garrison as soon as possible.
[8] The panel concluded that the applicant was not credible, and relied on four things:
(i) The panel detected a major contradiction between his testimony and his port of entry form (PEF). The PEF, filled out in English by the immigration officer who was taking down the applicant's answers as translated from Spanish by an interpreter over the telephone, reads: "client declares he saw an assassination. An official of the army assassinated a man I never saw before. I heard shots and I ran away but I did not see who did what." In his testimony, the applicant states he did not know whether the victim was dead or alive.
(ii) The panel notes a contradiction between what the applicant wrote in his personal information form (PIF) and his exhibit P-3, a medical report from the Emergency Department of the central military hospital dated June 20, 2000. In his PIF, the applicant writes "[Translation] they beat me until I lost consciousness. When I woke up, I was in the military hospital for treatment for a service accident." In the medical report (exhibit P-3), it is written that "[Translation] the patient says he had a service accident without loss of consciousness."
(iii) The panel draws another contradiction between his PEF, where it is written that his last employer was the Peruvian army, and his testimony, in which he stated that he had various jobs after his service in the Peruvian army.
(iv) The panel concluded that the applicant's testimony was improbable:
When asked to state whether, since leaving Peru for Canada, the soldiers had come back to his parents' home (given they had asked the claimant to report to the garrison as soon as possible), he answered in the negative. It was then pointed out to him that if he had not reported to the garrison as requested, it is reasonable to think that the soldiers would have come back to his parents' home about this matter. The claimant gave this answer: "a soldier never goes out in the street dressed in military uniform, he dresses as a civilian to go unnoticed." He added that his father told his uncle that there were strangers lurking around the house, dressed as civilians, but that they did not stop at the house. If the claimant has been wanted, as he claims in question 20, by people in the army since January 7, 2001, and if soldiers came to his house on January 8, 2001, to ask him to report to the garrison as soon as possible, it is unlikely that they would not return because "a soldier never goes out in the street dressed in military uniform, he dresses as a civilian to go unnoticed". The soldiers came dressed as such on January 8, 2001, therefore not going "unnoticed". In light of the situation, the claimant's answer undermines his credibility.
Analysis
[9] In this case the panel did not believe the applicant in light of its analysis of the evidence, that is, after making some findings of fact. Under subsection 18.1(4) of the Federal Court Act, the Court may intervene only if the panel issued a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. This amounts to the standard of review of a patently unreasonable conclusion.
[10] In Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, Madam Justice L'Heureux-Dubé, writes on behalf of the Court:
¶ ¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one:... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision .... [Emphasis added]
[11] The applicant argues that the things the panel singled out in order to impugn his credibility are without foundation.
[12] The first contradiction is between his testimony and his PEF written in English by the immigration officer. The panel thinks the interpreter was present and states:
At the port of entry, the immigration interpreter was present, translating all the questions into Spanish for the claimant and translating the claimant's answers to the officer from Spanish to French. The claimant did not give us any satisfactory responses regarding this extremely significant difference between the two versions, the version at the port of entry and the version in his testimony and his answer to question 37. [Emphasis added]
[13] It is obvious that the panel misunderstood how the point of entry form was written and how the interpretation occurred. This error in understanding warrants disregarding the first contradiction, since it is based on a specific word, "assassination", in the applicant's PEF.
[14] The applicant says there is no proof of the second contradiction, since the medical report was filled out by the Peruvian army and only the army can explain its contents.
[15] In my opinion, the panel's error lies not only in the fact that it found a contradiction, but in failing to assess the applicant's explanation (he testified, "I don't know why they put that") and to explain why the applicant's explanation was rejected.
[16] I do not accept the submission by the applicant's counsel that the improbability noted by the panel in the negative reply by Mr. Garcia to the question "[Translation] did the soldiers come to your home?" is unreasonable. He argues that the applicant never stated that the soldiers appeared in uniform.
[17] I have examined closely pages 402 to 404 of the transcript. To accede to the applicant's argument would be to do what the Supreme Court of Canada prohibits us from doing, that is, to review the facts or reassess the evidence. In the circumstances, I am unable to dismiss the improbability noted by the panel.
[18] It remains to determine whether the Court should intervene in the specific circumstances of this case, in which two of the four items relied on by the panel in disbelieving the applicant's story are upheld but two of them are overturned. In my opinion, the Court should intervene.
[19] The panel itself characterized the contradiction between the applicant's PEF and his testimony as an "extremely significant difference". This contradiction was rejected by this Court. On the other hand, the panel assigned no weight to the improbability it found in the applicant's reply. It seems to me, from reading the transcript, that the panel should go in greater depth into the issue of the soldiers dressed as civilians.
[20] For all of these reasons, this application for judicial review is allowed, the panel's decision is set aside and the applicant's claim is sent back for re-examination by a differently constituted panel of the Immigration and Refugee Board. No question of general importance has been raised.
"François Lemieux"
Judge
Ottawa, Ontario
July 12, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3917-01
STYLE: RICARDO FELIPE HUARCAYA GARCIA
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 25, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: JULY 12, 2002
APPEARANCES:
MANUEL A. CENTURION FOR THE APPLICANT
ÉDITH SAVARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
Manuel A. Centurion FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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