Date: 20100429
Docket: IMM-4803-09
Citation: 2010 FC 472
Ottawa, Ontario, April 29,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
EMMA
GRIZZEL DIAZ HEVIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the decision) of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 18,
2009, wherein the Board determined that the Applicant is neither a convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a 30-year-old citizen of Venezuela who entered Canada on
December 12, 2007 and made a refugee claim. The Applicant claimed a
fear of persecution based on her involvement in political activities in
opposition to the government of President Hugos Chaves.
[4]
The
Applicant claims she was seen as an opponent of the Chavez regime based on her
membership in and leadership of a political party known as COPEI and as such
both she and her family were targeted by the government. The Applicant claims
to have attempted to make a denunciation, but that only one police station
would accept her complaint and that she could not list her political activities
as the cause of the threats and attacks.
[5]
The
Applicant left Venezuela and subsequently returned in September 2007. She
claims that after her return she received two anonymous threatening letters
warning her to stop her work with COPEI in October and November of 2007. The
Applicant left for Canada in December 2007.
[6]
The
Board found that the Applicant had failed to establish with credible or
trustworthy evidence that she was a leader in her state COPEI party and that
she suffered persecution, harm, and threats based on her political activities.
[7]
Specifically,
the Board found that:
• The Applicant did not provide
sufficient credible or trustworthy evidence in support of her allegation that
she was a leader of the COPEI party in her state;
• There
were inconsistencies between the Applicant’s allegations in her Port of Entry
notes (POE) and her Personal Information Form (PIF);
• That
the Board could not give weight to the medical evidence as the Board was not
satisfied with the Applicant’s explanation of inconsistencies with regard to
the document’s format;
• The
Applicant’s reavailment to Venezuela undermined the
well-foundedness of her fear; and
• The
documentary evidence did not support the Applicant’s argument that a particular
political party threatened and harmed opposition members in 2007 during the
period of alleged persecution.
II. Issues
and Standard of Review
[8]
The
Applicant raises the following issues:
(a) Whether the Board erred by ignoring
or misunderstanding evidence in making its credibility findings;
(b) Whether
the Board’s credibility findings were perverse or capricious and not reasonably
open to it; and
(c) Whether
the Board erred in failing to assess all the evidence before it in deciding
whether the Applicant would face a reasonable possibility of persecution if she
returned to Venezuela.
[9]
These
issues will be assessed on a standard of reasonableness (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339). As set out in Dunsmuir and Khosa, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
[10]
The
Court is to demonstrate significant deference to Board decisions with regard to
issues of credibility and the assessment of evidence (see Camara v. Canada
(Minister of Citizenship and Immigration), 2008 FC 362; [2008] F.C.J. No.
442 at paragraph 12).
III. Analysis
A.
Issues
Related to Credibility
[11]
In
essence, the Applicant claims that the Board ignored, misunderstood or failed
to assess all the evidence before it and made credibility findings that were
perverse or capricious and not reasonably open to it.
[12]
The
Board determined that the Applicant did not provide credible evidence and that
the evidence provided by her was inconsistent. The Board found numerous
inconsistencies between the statements made by the Applicant in her POE and
PIF. The Board also held that the Applicant had made numerous and unacceptable
errors with regard to specific knowledge of the COPEI party, of which she
claimed to be a leader.
[13]
The
Applicant argues that she provided explanations for these inconsistencies at
the second day of the hearing while being questioned by her counsel.
[14]
While
it is open to the Applicant to provide explanations, the Board may consider the
response and determine whether it was sufficient (see Sinan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 87; [2004] F.C.J. No. 188 at
paragraph 10). In this case, the Board noted that it preferred the evidence
provided on the first day of hearings as the Applicant did not have time to
prepare an answer. The Board stated that the Applicant’s inability to
accurately answer most of the questions it asked with regard to her party
undermined her credibility and her claim to be a member and leader of COPEI. The
Board’s decision was reasonable.
B.
Issues
Related to the Evidence
[15]
The
Applicant states that the Board erred by ignoring, misunderstanding or
unreasonably rejecting the evidence before it with regard to the COPEI party. The
Applicant argues that relevant evidence cannot be ignored or misunderstood by
the panel in making its findings, relying on Toro v. Canada (Minister of
Employment and Immigration), [1981] 1 F.C. 652, Action No. A-281-80, Padilla
v. Canada (Minister of
Employment and Immigration)(1991), 13 Imm. L.R. (2d) 1; [1991] F.C.J. No. 71
(F.C.A.) and Lai v. Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 906, Appeal No. A-484-91).
[16]
The
Board considered the evidence with regard to the persecution of opposition
members by the “Bolivarian Circle”. I note that many of the articles cited
by the Applicant are recent and not directly related to the period of time the
Applicant claims she was persecuted. After reviewing the evidence, the Board
held that the documents did not support the Applicant’s claim that the group
had been active in persecuting opposition leaders. It is not the role of this Court
to re-weigh the evidence. The Board’s decision was reasonable.
[17]
In
addition, the Board had previously found that the Applicant was not a leader of
the COPEI party based on her problematic testimony. Therefore, the Board’s
treatment of the documentary evidence with regard to the COPEI party and their
membership in Venezuela does not go
to the heart of the decision.
C.
The
Issue of Reavailment
[18]
The
Applicant argues that the Board ignored her evidence and explanation for
leaving and then returning to Venezuela in September 2007. It
is her position that she testified at her hearing that the threats, in the form
of two letters, intensified on her return. Therefore, the Applicant argues, the
Board’s decision that her return demonstrated a lack of subjective fear was
unreasonable.
[19]
The
Respondent argues that the Court has held that the Board may infer an applicant
does not have a fear of persecution if they return to or visit their country of
nationality (see Ali v. Canada (Minister of
Citizenship and Immigration), 112 F.T.R. 9; [1996] F.C.J. No. 558). Therefore,
if the Applicant had truly feared for her life, she would not have reavailed
herself to Venezuela.
[20]
The
Board found that the Applicant’s reavailment to Venezuela undermined
the well-foundedness of her fear. This decision is reasonable even if the
threats increased after her return in September 2007. The Applicant’s claim was
based on the alleged persecution before and after September 2007. Therefore, it
was reasonable that the Board would find that her claim to a subjective fear of
persecution was undermined by her return to a country that she had previously
fled due to persecution. The conduct of the Applicant was inconsistent with the
alleged well-founded fear of persecution.
[21]
The
parties did not raise an issue for certification and none arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application is dismissed; and
2.
there
is no order as to costs.
“ D.
G. Near ”
Email this Content