Date: 19991001
Docket: IMM-5985-98
Between:
AUGUSTO JUAN CEA ARAVENA
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") rendered on November 2, 1998, that the applicant was not a Convention refugee.
[2] The applicant, a citizen of Chile, claimed refugee status on June 7, 1996, on the ground that he feared persecution for his political activities. The applicant stated that he had been arrested, detained and struck many times as an opponent of the Pinochet regime. He also confirmed, in the course of his testimony, that since 1990, that is, since General Pinochet had ceased being in power, he had not been arrested or detained. However, he alleges that in November 1995, he was ambushed by four far-right militants who struck him and knifed him in the back. He claims that if he returns to Chile, he will be attacked by these same individuals.
[3] The Refugee Division based its decision on lack of credibility, and noted a number of improbabilities and contradictions between the applicant"s testimony and the story recounted in his Personal Information Form ("PIF"). The decision reads, in part, as follows:
| [Translation] On the other hand, the incident of November 1995, when he was allegedly caught in an ambush, was described to us by the claimant in a hesitant and imprecise manner. First, he told us he did not recall exactly where he was coming from when he was attacked. He then changed his mind and told us he was coming home from work. Then he provided a third version, telling us he was no longer working at that point, but was instead helping a friend in his business. In his PIF, he writes that immediately after the assault he went to the hospital, and then went home. At the hearing, he told us instead that he had immediately gone home, going later to the hospital. His initial idea, he told us at the hearing, was to go into hiding. His contradictions and hesitations while he was speaking to us about this incident suggest to us that this incident never existed.... |
| Other facts also tend to contradict his subjective fear. After leaving Chile because of his fear, he stayed six months in Mexico, without claiming refuge there, and worked as a waiter. He told us he had not inquired as to whether Mexico granted refugee status, since he was thinking of coming to Canada. But in his PIF he wrote that he did not seek political refuge in Mexico since this was impossible. |
[4] The applicant submits that his testimony was accurate. Furthermore, he submits that he did not provide differing versions, but that as the questions were put to him he remembered further particulars. Concerning the events that occurred after the assault, he maintains that there is no contradiction between his PIF and his testimony. Finally, the applicant alleges that the fact that he failed to claim refugee status in Mexico is irrelevant since that country does not respect human rights.
[5] In my opinion, this application for judicial review must be dismissed for the following reasons.
[6] The decision not to grant refugee status to the applicant is essentially based on the assessment of his credibility. In my opinion, the decision of the Refugee Division, based on the applicant"s lack of credibility, is not unreasonable. In light of the record, there can be no doubt that the Refugee Division was correct to note, as it did, certain improbabilities and contradictions.
[7] For example, the applicant"s testimony concerning the events preceding his assault shows, as the Division noted, some hesitations and improbabilities:
[Translation]
| Q. So, tell us how... I don"t know, for example, what time it was, where you were coming from, where you were going, where were these people before they beat you, how it happened. Tell us a detailed story about what happened, please. |
| A. Well, I was going home, I... I was walking along Maoulé street. |
| Q. O.K. You were coming from where? |
| A. Vikounia Makena [ph.] street. |
| Q. No, but were you coming from school? Were you coming from work? Were you coming from a... a girlfriend"s? You were coming from somewhere? |
| A. I don"t remember very well what I had done during that day. |
| Q. But it is not what you did that day, it is what were you doing just prior? |
| A. Well, I was coming... coming from the downtown area of the capital. |
| Q. And you don"t know what you were doing? |
| A. I think I was coming from work. |
| A. In the... the work at the Néron discotheque. |
| A. It was late, it was about 7:00 or 8:00 in the evening. |
| Q. The discotheque... you were working during the day in the discotheque? |
| A. At that time, I had already stopped working, I was simply going to help the owner, to speak with him. |
| A. I... I was going there to help him, to speak with him, to spend some time... a moment with him at the discotheque. |
| Q. You were helping in ... how? |
| A. At that point, he was not paying me. |
| Q. You were helping him in what way, Sir? Listen to the question. |
| A. O.K. A little... I was doing a little maintenance, I was helping to... to unload drinks, the liquor that was coming in. |
| Q. And you were doing that free of charge? |
| A. Well no, the owner was my friend. |
| Q. He was paying you? He was paying you? |
| A. I could get into the discotheque when I wanted, during the day it was a restaurant. |
This extract from the applicant"s testimony is revealing. First, when the member asked him if he was coming from school or work, the applicant answered that he did not remember. When the question is put to him again, he answers that he was coming from downtown. Then he states on the one hand that he was coming from work, and on the other hand that he had stopped working at that point. So the conclusion drawn by the Refugee Division is not at all unreasonable.
[8] Similarly, there is a disparity between the applicant"s testimony and his PIF in regard to the events that allegedly followed his assault. In his testimony, the applicant stated that he had gone home before going to the hospital. However, in his PIF, he stated: "[Translation ] I went to the hospital, where I stayed for about an hour. Then I went home and called the police."
[9] In his PIF, the applicant indicated that he had not claimed political refuge in Mexico because "this was impossible". However, he testified that he did not inquire, when he was in Mexico, whether he could claim refugee status in that country. Furthermore, at the hearing, when the Refugee Division asked him if he shouldn"t have sought refugee status in Mexico, he answered, "[Translation ] At that point, I wasn"t thinking about this at all, and all I wanted was to come to Canada." Given this evidence, it is not surprising that the Refugee Division had some serious doubts as to the validity of his claim.
[10] Since I have reached the conclusion that the decision of the Refugee Division concerning the applicant"s lack of credibility has merit, it will not be necessary to review the other questions raised by the applicant, other than the question concerning the tribunal"s bias.
[11] In the first place, the applicant submits that his claim was heard by members who had pre-established opinions on Chile, and that they were not prepared to hear all the evidence. In my opinion, this statement is completely gratuitous. There is no evidence on the record to support such a statement.
[12] Secondly, the applicant makes the following submissions, at paragraphs 48, 49 and 50 of his memorandum:
| 48. More particularly, in this case, there was clearly a violation of the principles of natural justice, which shows quite clearly the scant importance the rights of refugee claimants have before this tribunal. When one of the members asked the applicant if the answer to question 37 in the Personal Information Form corresponded to his story, the applicant clearly answered that there were some parts of the French translation that did not correspond to the version of his story he had written in Spanish; |
| 49. Furthermore, when he was asked if his form had been translated to him, the applicant answered no, which did not prevent the members from proceeding with the hearing nevertheless. A break to allow the claimant to examine the French version of his story and make the necessary changes would have avoided any appearance of contradiction that subsequently developed; |
| 50. The rules of natural justice and procedural fairness required that the tribunal postpone the hearing or at least take a break to ascertain that the story presented by the claimant"s lawyer indeed corresponded to his story in Spanish. The I.R.B. is after all a human rights tribunal, [and] in the applicant"s case it is a life-or-death question whether he will be sent back to his country, [and] acting as it did, the tribunal clearly disclosed its bias and contempt for the rights of claimants; [Text as in the original] |
[13] In my opinion, there is no basis for this submission. One need only read the transcript to reach this conclusion. Here is what is disclosed by the transcript of the hearing of July 23, 1998. After being informed by the claimant of the changes he wished to make to his PIF, the Refugee Division questioned him concerning his understanding of the account related in his PIF. I reproduce pages 11 to 13 of the transcript (Tribunal Record: pp. 217, 218 and 219):
| BY THE CHAIR (addressing the adviser) |
| Q. O.K. Are there further corrections? |
| A. That"s probably all, unless the gentleman has something else to add, it is all I have. |
| Q. Can you please display the form, and in particular page 11? |
| BY THE CHAIR (addressing the claimant) |
| Q. Sir, is that indeed your signature that appears? |
| Q. Were the contents of the form in front of you translated into Spanish from French? |
| Q. Question 37 here, among others, the story, there, your account, was that translated for you, the story that appears there? And are you aware of what is written there? |
| A. No, from Spanish to French. |
| Q. Are you now, are you capable of reading French? |
| Q. Are you reading in what you have in front of you, there, question 37? Do you agree with what is written there? |
| Q. O.K. And you also agree with all the rest of your form? For all the other questions and all that? |
| A. But there are some parts that are not well done, that are not... that do not correspond to what I wrote in Spanish. |
| Q. Did you inform your lawyer of the corrections to be made in it.... |
| A. We made as many corrections as we could. |
| Q. And you agree with the corrections that your lawyer made at the commencement of the hearing? |
| Q. Fine. And what is left now and what you have in front of you, you agree? This is your story? |
| BY THE CHAIR (addressing the adviser) |
| - Mr. Objois, we have carefully read the form and in particular question 37, and I think we would be interested in knowing in particular the most recent incidents that made your client decide to leave Chile, his fear of returning, whom he fears. Thank you. |
[14] In my opinion, there is no basis to the applicant"s submission that the principles of natural justice were violated. I note that during the hearing the applicant"s counsel requested neither a postponement nor a break.
[15] For these reasons, the application for judicial review is dismissed.
CALGARY, Alberta
October 1, 1999
Certified true translation
Bernard Olivier
Date: 19991001
Docket: IMM-5985-98
Between:
AUGUSTO JUAN CEA ARAVENA
Applicant
And:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-3475-98 [sic] |
| STYLE: AUGUSTO JUAN CEA ARAVENA |
| and THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 1, 1999 |
REASONS FOR ORDER AND ORDER RENDERED BY NADON J.
DATED: FRIDAY, October 1, 1999
APPEARANCES:
Tammy Tremblay for the applicant
Josée Paquin for the respondent
SOLICITORS OF RECORD:
Tammy Tremblay for the applicant
Morris Rosenberg
Deputy Attorney General of Canada for the respondent
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