Date: 20101012
Docket: IMM-1585-10
Citation: 2010 FC 1005
Ottawa, Ontario, October 12,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
IVAN ARTURO PARASI AGUIRRE
BEATRIZ ENRIQUETA RUBIO DE PARASI
and IVAN AARON PARASI RUBIO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of the
Refugee Protection Division (the Board), dated February 25, 2010, where Ivan
Arturo Parasi Aguirre (the principal applicant), Beatriz Enriqueta Rubio De
Parasi (the principal applicant’s wife) and Ivan Aaron Parasi Rubio (the
principal applicant’s son) were found not to be Convention refugees or persons
in need of protection.
[2] The applicants are citizens of Peru. The origin
of the applicants’ problems began in the early 1990s when the principal
applicant’s brother-in-law took up a municipal political position, and faced
threats from terrorist groups resulting in his leaving the country in 1992.
[3] From 1994 to 1998, there were no
incidents reported by the applicants. However, they began to be targeted in
1998. The first incident reported was the trashing of their supermarket while
they were on vacation. The caretaker blamed the Shining Path.
[4] In 1999, the applicants alleged
that their supermarket was again looted, and on April 1, 2000, the principal
applicant was attacked on the street. Two weeks after this incident, terrorists
threw rocks at the principal applicants’ home and at his son.
[5] The principal applicant
contacted the police on the above three occasions, but received no assistance.
[6] The applicants fled from Peru to the
United States in May 2000, and came to Canada in 2007
where they all claimed refugee status.
[7] The Board dismissed the
applicants’ applications on issues of credibility, inconsistencies,
contradictions and the fact that the applicants faced a generalized risk.
[8] The Board found that the
applicants were credible with respect to what they had experienced, but were
not credible with respect to the agent of harm. They were unable to establish
that the harm they endured was the result of specific and extended targeting
directed at the family and the business by the Shining Path.
[9] The Board found that the
claimants were subject to crime and random attacks because of their perceived
wealth, but that perceived wealth could not be considered to be a Convention
ground for a finding of refugee status.
[10] Questions of credibility are
questions of fact and therefore attract a standard of reasonableness (Aguirre
v Canada (Citizenship
and Immigration), 2008 FC 571, [2008] FCJ No 732, para 14; Guzman v Canada (Citizenship
and Immigration), 2008 FC 490, [2008] FCJ No 624, para 10). Accordingly, the
Court will only intervene if the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para 47).
[11] The Board drew its conclusion on
the credibility of the applicants, on inconsistencies between oral testimony
pointing to the Shining Path, and the documentary evidence which states that
during the years in question the Shining Path was almost inactive. Also, on
inconsistencies between the oral testimony of the principal applicant and what
was said to the Immigration Officers (IOs) in writing and in interviews and
inconsistencies between the oral testimony of the principal applicant and the
first Personal Information Form (PIF).
[12] The applicants refer to Shaheen
v Canada (Citizenship
and Immigration), 2001 FCT 670, para 13, where the Court states that :
The discrepancies relied on by the
Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300
(F.C.A.). The Refugee Division must not display a zeal "to find instances
of contradiction in the applicant's testimony... it should not be over-vigilant
in its microscopic examination of the evidence" (Attakora v. M.E.I
(1989), 99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency
must be rationally related to the applicant's credibility (Owusu-Ansah v.
Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.).
Explanations which are not obviously implausible must be taken into account (Owusu-Ansah,
supra)
[13] In the case at bar, I do not
think that the inconsistencies found by the Board are “microscopic”. I find
that they are indeed rationally related to the applicants’ credibility. The
Board was not satisfied with the answers given by the applicants on the
question of why they changed their testimony regarding the responsible agent
for the alleged attacks.
[14] In addition, the Board did not
simply base its findings on the inconsistencies between the principal
applicants’ oral testimony and its interactions with the IO, but it also took
into account the country condition documents. Details can be found in paragraphs
10 to 25 of the decision. The Court is of the opinion that the conclusions
drawn by the Board are supported by the evidence.
[15] As to the determination by the
Board that the applicants faced generalized risk as any individuals in Peru,
the Board gave cogent reasons and cited Cius v Canada (Citizenship and
Immigration), 2008 FC 1, paras 18-21. The Court’s intervention is not
warranted.
[16] In regards to the alleged breach
of natural justice, the applicants submit that they had legitimate expectations
that only the replacement PIFs would be considered at the hearing. Instead, the
Board examined both the first PIF and the amended PIF. They rely on Levanaj
v Canada (Citizenship
and Immigration), 2006 FC 330, [2006] FCJ No 400, para 34.
[17] The facts in that case are
different from the case at bar. Here, the applicants were given notice at the
beginning of the hearing that the first PIF would be looked at.
[18] As a result, I find that there
was no breach of procedural fairness.
[19] The applicants propose the
following questions for certification:
1. In
deciding whether a decision is reasonable as defined by the Supreme Court of
Canada in Dunsmuir v New Brunswick, [2008] SCR 190 and Canada (Citizenship
and Immigration) v Khosa, [2009] SCJ No 12
a. Does
an RPD decision lack (a) justification or (b) transparency if it does not refer
to specific, relevant evidence?
b. Is
an RPD decision intelligible if the discussion of the evidence consists of little
more than a blanket statement that the RPD has “considered all of the evidence”?
2. Is
it (a) procedurally unfair or (b) contrary to the principles of natural justice
or (c) unreasonable to search microscopically for inconsistencies between a
Personal Information Form that was not translated back to the claimants and an
amended Personal Information Form?
3. Is
the RPD entitled to deem that a claimant is not credible and complaining about
the conduct of a consultant or counsel if the claimant does not file a formal
complaint with a regulatory body or take action?
4. For
the purpose of section 96 of the Immigration and Refugee Protection Act,
can capitalists constitute a particular social group in a country where
capitalists are persecuted?
5. Is
Roma v Canada (MCI), [2006] FCJ No 728 the
law and that it may be unreasonable for the RPD to make negative credibility
findings because a claimant
a. is
more general in identifying the agent of harm on arrival in Canada than in a
Personal Information Form or at the hearing? or
b. becomes
more certain of the identity of the agent of harm in light of new information
received between the time of arrival in Canada and the
refugee hearing?
[20] I agree with the respondent that
these questions should not be certified because either they are not questions
of general importance or they have been settled by the jurisprudence.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application is dismissed. No question is
certified.
“Michel Beaudry”
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