Date: 19990518
Docket: IMM-2927-98
BETWEEN:
LORENA GONZALEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant is a refugee claimant from Mexico. She seeks judicial review of the negative decision of the Convention Refugee Determination Division (CRDD), dated April 8, 1998.
[2] Her evidence was that she was employed as an accountant by a company carrying on business in Mexico. In the course of her duties she came across what she believed to be evidence of money laundering and drug dealing by someone in the company. She disclosed some of the accounting irregularities to her boss, who said he would investigate.
[3] She told no one in the company about the evidence she had found relating to drug dealing, but disclosed that information to a police officer who was a friend of a friend, without disclosing exactly what she had found or that it was she who found it. The police officer advised her not to pursue the matter. She did not take that advice and continued investigating on her own.
[4] When asked why she would do that rather than simply leave the company, she indicated that she feared being falsely accused of something and wanted information she could use to defend herself. She also indicated that it was difficult to find work in Mexico without a recommendation from previous employers, and she was responsible for supporting her family. When pressed in cross examination about whether she had even looked in the newspapers for job openings, she said that she had.
[5] The applicant says that soon after her discussions with the police officer, her boss attempted to rape her. This occurred on June 13, 1996. She believes he attacked her because he had learned, perhaps from the police officer, that she had uncovered the evidence of drug dealing. She fled and the next morning complained to the police, who apparently did nothing. She did not return to work after that, but stayed with friends. Some days later her mother told her by telephone that the police had come to the house and that there was an outstanding warrant for her arrest in connection with fraud charges laid against her by her employer. The applicant fled to a friend's home in a nearby city, but left after two weeks when her friend was beaten by police and then he was warned not to allow the applicant to stay. She then sought refuge in a church, where she stayed for some three months.
[6] Her parents made arrangements for her to flee the country by air, using her own passport. The applicant explained that she was afraid to try to leave with false papers because she might then be charged with a real offence rather than a false one. The applicant entered Canada in October of 1996 and made her refugee claim in March of 1997.
[7] The negative decision of the CRDD was based on a finding that the applicant's evidence lacked credibility. The reasons for decision give five bases for that finding. Counsel for the applicant challenges each of those bases.
Delay in making the claim
[8] The CRDD found that the applicant did not give credible reasons for the delay between landing in Canada and asserting her claim. The CRDD said:
| When asked why she instituted a claim later, she said that she was looking for a way to legalize her status. |
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[9] Counsel for the applicant argues that this is an incorrect description of the evidence. The transcript indicates that when the applicant was asked what prompted her to make the refugee claim on March 10, 1997, she replied:
| I had requested previously information with respect to if there was some way I could stay in this country and I was told that my country is not a country that has any problems. That I did not have any possibility of obtaining refugee here. That there was no possibility of staying here as refugee and someone advised me to go to this community city [centre] that's in Flemington Park and that's where I was told that Canada would not deny me the right to make a refugee claim and that any country that .. any country could introduce a refugee claim and that my country was not an exception. |
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[10] Counsel for the applicant argues, based on this and other parts of the transcript, that the CRDD disregarded the applicant's evidence that she delayed her claim in the hope that the situation at home would improve so that she could return. He submits that the CRDD ignored her evidence that when that did not occur, she sought advice and was told, erroneously, that it was not possible to make a refugee claim against Mexico. However, she later was given correct advice and she made a claim when she learned that she was entitled to do so.
[11] Applicant's counsel presents a reasonable interpretation of the applicant's evidence that is at odds with the interpretation of the CRDD. However, in my opinion it was open to the CRDD to interpret the applicant's evidence as it did, and to conclude that the applicant's delay in making her claim should weigh against her credibility.
Method of Departure
[12] The CRDD considered that the applicant's act of leaving Mexico with her own passport was not consistent with her claim that she feared arrest on false fraud charges. Counsel for the applicant argues that the applicant offered a plausible explanation that the CRDD ignored.
[13] I do not accept that the applicant's explanation was ignored. The CRDD rejected her explanation as not credible, as it was entitled to do. The CRDD's rejection of the applicant's explanation is not unreasonable, based on the record as a whole.
Omission from the Personal Information Form
[14] The CRDD noted that in her evidence the applicant claimed that the police had placed her home and parents under surveillance, but that was not mentioned in her personal information form.
[15] Counsel for the applicant argues that it is not reasonable to draw a negative inference as to the applicant's credibility from this omission. He says, first, that it was an omission and not a contradiction. It was consistent with her evidence that the police actually came to her parents' home looking for her. Second, he points out that the import of her evidence about the police was to support her claim of a direct threat, and the fact of surveillance is clearly less serious than the fact of the direct police action against her.
[16] I agree with counsel for the applicant that there is nothing about the evidence of police surveillance that is inconsistent with the applicant's evidence, or her claim. However, I cannot see this as a fact that is so unimportant that the CRDD was wrong to note its omission from the personal information form. In my view it was open to the CRDD to conclude that the omission of this fact weighs against the applicant's credibility.
Discrepancy between the personal information form and port of entry notes
[17] The CRDD noted that the claimant's evidence differed from the notes taken by the officer at the interview conducted in March of 1997 when she made her claim. The notes suggest that she claimed to fear her co-workers, but that is clearly not the basis of her claim, which is that she fears her employer and the police.
[18] When confronted with the contents of the notes, the applicant said that she could not recall what she said to the officer about who she feared. The CRDD found that her failure to recollect was implausible. Counsel for the applicant argues that this is an unreasonable conclusion, and also that the CRDD misstated her evidence on this point.
[19] There is no evidence as to whether or not the notes are an accurate reflection of what the applicant said in the interview. The notes are demonstrably incorrect with respect to one important fact, the date on which the applicant left her job in Mexico. Their accuracy on other points may well be questionable.
[20] The applicant was asked at the hearing whether she had said that her co-workers were planning to kill her, and she said:
| Not my co-workers, only the architect for Segura. |
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[21] Then she was asked whether that is what she told the officer at the interview, and she said:
| The truth is I do not even remember what I said because the only thing I know what I'm saying here is the truth. There's no reason why I should lie. |
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[22] She does not say that she might have mentioned her co-workers, or that it's possible that she mentioned her co-workers. Yet the CRDD seems to have concluded that she was somehow implying that. The CRDD said of this evidence:
| Why would the claimant think that she would possibly indicate that she feared persecution from her co-workers, if this was not the truth? |
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[23] The CRDD seems to have expected the applicant to deny stating that she feared her co-workers, and then disbelieved her when she said instead that she did not remember.
[24] I agree with counsel for the applicant that the CRDD has misdescribed her evidence on this point and therefore must have misunderstood it. I would also question the logic of asking the applicant to explain interview notes made by someone else, in another language, by reference to her own recollection of the interview, and then drawing an adverse inference as to her credibility from her failure to recollect.
Plausibility
[25] The CRDD said it was implausible that the applicant would have found the evidence she described at her employer's place of business, and then stayed with her employer to dig for more information, instead of quitting immediately. To explain that conclusion, the CRDD said this:
| Lastly, the panel has considered the plausibility of the story she asserted that she worked for a company, searched a box for drugs, confronted the employer and fled the country. The claimant was asked why she simply did not quit her job, instead of digging for information and evidence of drugs. She stated that jobs are hard to find. When pressed as to whether she actually looked for another job, she finally said that she looked in the newspaper. The panel finds that this evidence lacks credibility. The claimant simply answered that she looked in the newspaper thinking that this would appease the panel. It is clear that the claimant made no serious efforts to find other employment. |
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[26] Counsel for the applicant argues that the CRDD did not properly assess the applicant's conduct on the basis of the circumstances in which she found herself, but engaged in speculation as to what some other person might have done in her place, and then assumed that its speculation was the only plausible course of action. He says that the CRDD thus imposed a wholly unreasonable standard on the applicant, resulting in the same error as that identified in Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.) and Cardenas v. Minister of Citizenship and Immigration (20 February 1998), IMM-1960-67, (F.C.T.D.). He correctly points out that there is no objective evidence in the record for the "ideal" asserted by the CRDD. This may be contrasted with cases in which, for example, the plausibility of a refugee claimant's story is measured against what is known about conditions in the country where the claim arose.
[27] In my view, it was open to the CRDD to assess the plausibility of the applicant's conduct as it did, by considering her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour. The comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.) reflect my view:
| In short, the real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a reasonable and informed person would readily recognize as reasonable in that place and in those conditions. |
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[28] I see nothing in the Giron case that is inconsistent with this conclusion. In this regard, I refer to the comments of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) at 316-7:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who 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. |
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[29] From this it is clear that determinations as to the plausibility of human conduct are within the jurisdiction of the CRDD. If evidence relevant to the question is offered, for example in the form of an expert report of a psychologist or sociologist, the CRDD is obliged to consider it along with the other evidence before it. However, I do not accept that such evidence is required in every case, or in this case. I find no reviewable error in the CRDD's finding on plausibility.
Conclusion
[30] In my view, the only questionable part of the decision of the CRDD relates to the interviewer's notes. The CRDD's error in that regard is not sufficient to warrant judicial interference in the decision.
This application for judicial review is dismissed.
Karen R. Sharlow
Judge
Ottawa, Ontario
May 18, 1999
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