Date: 19990812
Docket: IMM-4586-98
Ottawa, Ontario, the 12th day of August 1999
Present: The Honourable Mr. Justice Pinard
Between:
JUAN RODRIGO PENAILILLO DIAZ
CAMILA ANTONELLA PENAILILLO PUELLES
JOHANNA ELIZABETH PUELLES CORDERO
Applicants
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review is allowed. The Convention Refugee Determination Division decision dated August 18, 1998, determining that the applicants are not Convention refugees, is set aside, and the matter is referred back to a different panel of the Convention Refugee Determination Division for rehearing and redetermination.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990812
Docket: IMM-4586-98
Between:
JUAN RODRIGO PENAILILLO DIAZ
CAMILA ANTONELLA PENAILILLO PUELLES
JOHANNA ELIZABETH PUELLES CORDERO
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division decision dated August 18, 1998, determining that the applicants are not Convention refugees as defined in subsection 2(1) of the Immigration Act.
[2] The applicants, Juan Rodrigo Penailillo Diaz, his wife Johanna Elizabeth Puelles Cordero and their minor daughter Camila Antonella Penailillo Puelles, are citizens of Chile. They left their country on May 21, 1996, to arrive in Canada the next day and, on that day, claim refugee status alleging a well-founded fear of persecution in Chile because of the trade union activities of the principal claimant, Juan Rodrigo Penailillo Diaz.
[3] This is a case in which, owing to the insufficiency of the reasons the Refugee Division gave for rejecting the principal claimant"s testimony, I must intervene.
[4] In Armson v. M.E.I. (1989), 101 N.R. 372, Mr. Justice Heald for this Court wrote the following at page 376:
| In my view, the decision a quo is defective for another reason. In the circumstances of this case, the Board owed a duty to this applicant to give its reasons for rejecting the applicant"s refugee claim on the ground of credibility in clear and unmistakeable terms [Re Pitts and Director of Family Benefit Branch of the Ministry of Community and Social Service (1985), 9 O.A.C. 205; 51 O.R. (2d) 302, Ontario Divisional Court]. At page 310 of the Pitts case, Mr. Justice Reid said: |
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| "The task of determining credibility may be a difficult one but it must be faced. If the board sees fit to reject a claim on the ground of credibility, it owes a duty to the claimant to state clearly its grounds for disbelief. The board cannot simply say, as the member did here, "I feel that I have not received credible evidence to rescind the decision of the respondent". Some reason for thinking the evidence not credible must be given if an appearance of arbitrariness is to be avoided. . . ." |
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[5] Subsequently, in Pour v. M.E.I. (December 5, 1991), A-655-90, Mr. Justice Marceau allowed the application for judicial review, holding that the panel"s reasons were inadequate:
| This conclusion seems to us to be necessary because of the excessively laconic nature of the reasons. The Board found certain elements in the claimant"s account of the events which prompted him to flee his country to seek refuge elsewhere to be hard to believe, and it is the role of the Board to make that judgment. However, the Board did not say whether its finding that the claimant was not credible led it to reject completely the claimant"s assertions as to the genuineness of his fear, let alone, it would appear, how it led to this overall rejection of his testimony. In our view, this is where the inadequacy of the reasons becomes apparent and makes it inevitable that this Court must intervene. |
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[6] Finally, in Mehterian v. M.E.I. (June 17, 1992), A-717-90, the Federal Court of Appeal, on the same topic, stated the following:
| Subsection 69.1(11) of the Immigration Act, R.S.C. 1985, c. I-2, requires that the Refugee Division "give written reasons" for any decision against the claimant. If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary. |
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| We are all of the opinion that the reasons given by the Refugee Division in this case do not meet these criteria. Stating that the claimant "did not prove the existence of the reasonable fear of persecution", without saying any more, may mean that the panel did not believe the claimant, or that it believed him but that the reasons for the alleged persecution do not fall within the reasons listed in the Act, or that the reasonable fear which existed in the past is no longer reasonable because of changed circumstances in the country of origin. There are several other possibilities, inter alia , that the Refugee Division interpreted the Act itself badly. |
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[7] In this case, the Refugee Division said the following in rejecting the principal claimant"s testimony:
| [TRANSLATION] We find the claimant"s account implausible, considering the role he claims to have played in the organization and activities of the fishers union in Chile. A mechanic by trade, the claimant says he joined the union of the company where he was working in 1995. He was allegedly dismissed on April 30, 1995, for stating that company employees were underpaid. He apparently had no other known union activities until October 1995, when he met the secretary of the San Pedro inshore fishers union. From then on, the claimant held himself out to be a champion of the rights of fishers, who, according to his testimony, being simple people, often do not know how to defend their own interests. The claimant felt that he could unite them under one organization. He claims his activities were so significant that the Chilean government took reprisals against him. Soldiers, in the government"s pay, purportedly attacked the claimant because of his union activities. The union supposedly even had to have a car escort him to meetings and to San Antonio city hall to obtain permits required for demonstrations. We find this whole situation implausible and are unable to believe the claimant"s testimony. |
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[8] Thus it appears the Refugee Division did not doubt the applicant"s union activities, but rather had doubts about the seriousness of the Chilean government"s reprisals, considering the limited significance of those union activities. To my mind, since it did not at all question the fact that applicant had indeed participated in the very organization of the demonstrations, the panel had to justify, having regard to reliable parts of the documentary evidence, why such involvement could not in itself have brought on the reprisals the principal claimant affirmed on oath to have suffered. The principal claimant actually testified that he was not a mere participant in the demonstrations, but was one of the organizers, which explained why he was singled out. In this context, it seems capricious, in view of the applicant"s uncontradicted testimony, to simply find "the whole situation" implausible. At the very least, the panel was required to refer to specific, relevant evidence to justify its finding. It did not do this; instead, it merely summed up the principal claimant"s testimony.
[9] Applying the above principles articulated in the case law to this case, I accordingly allow the application for judicial review, set aside the Refugee Division"s decision and refer the matter back to a different panel of the Refugee Division for rehearing and redetermination.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 12, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4586-98
STYLE OF CAUSE: JUAN RODRIGO PENAILILLO DIAZ
CAMILA ANTONELLA PENAILILLO PUELLES
JOHANNA ELIZABETH PUELLES CORDERO
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 23, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED AUGUST 12, 1999
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANTS
MARIE-NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANTS
MARIE-NICOLE MOREAU
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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