Docket: IMM-3629-11
Citation: 2012 FC 35
Ottawa, Ontario, January 11,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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ANA ROSA MOLINA SANCHEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by Ana Rosa Molina Sanchez challenging a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (Board) which denied her claim to refugee protection. Initially
Ms. Molina Sanchez’s claim was joined with claims by her daughter and
grandson but for the purposes of this proceeding, she remains the only
Applicant.
Background
[2]
Ms. Molina
Sanchez is a citizen of Venezuela who came to Canada from
Colombia in 2009
ostensibly to escape from threats to her safety made by groups which support
the Chavez government. She provided evidence of her work as a political
activist involved in public demonstrations opposing President Chavez. This
profile formed the background to her allegation of prolonged and intense harassment
by way of telephone calls carried out by persons who identified themselves as
members of three different terrorist groups: the Revolutionary Armed Forces of
Colombia (FARC), the Bolivian Circles and the Tupamaro. Ms. Molina Sanchez
also attempted to link her situation to the earlier kidnapping of a former
brother-in-law and to threats directed at her by her daughter’s former
boyfriend.
[3]
The
Board found that Ms. Molina Sanchez was not a credible or trustworthy
witness. That finding was based, in part, on her failure to include any
reference to threats by her daughter’s former boyfriend in her Personal
Information Form (PIF). This aspect of her claim to protection only came up in
her testimony at the hearing. The Board also expressed a concern about
Ms. Molina Sanchez’s inability to recall details of these alleged threats.
[4]
The
Board also disbelieved the daughter’s evidence that she was at risk from her
former boyfriend and it found that both Ms. Molina Sanchez and her
daughter had embellished that part of the story to bolster the daughter’s
refugee claim.
[5]
The
Board also rejected Ms. Molina Sanchez’s risk allegations concerning a
history of telephone threats. It found no persuasive evidence linking those
allegations to the earlier kidnapping of her former brother-in-law. It also
found that her political profile was not of a kind that would attract
persistent threats of the sort she had described. Her attempt to link those
allegations to three different terrorist groups was also rejected as
implausible in circumstances where the threats had never been acted upon over a
period of several months.
Issues
[6]
Were
the Board’s factual findings reasonably supported by the evidence?
Analysis
[7]
The
issues raised on behalf of Ms. Molina Sanchez are all evidence-based and
must be reviewed on the standard of reasonableness.
[8]
The
Board’s principal credibility concern had to do with Ms. Molina Sanchez’s
failure to include in her PIF what the Board described as “a central element”
of her risk narrative. This part of the decision was expressed as follows:
The principal claimant’s mother testified
during the hearing that indeed, the principal claimant’s former boyfriend had
accosted her in a mall on one occasion and had gone to her home on a number of
occasions. The mother could not remember the dates when this happened and could
only indicate a year in which these happened and was not even sure about that.
The mother indicated in her oral testimony that the one of the people she feared,
was the principal claimant’s former boyfriend. The mother was asked why she had
not included this in her narrative. The mother testified that she was
overwhelmed with her own situation and that she was thinking of groups and not
a person in particular. Counsel’s written submissions indicate that the mother
did not include information about the principal claimant’s former boyfriend in
her own narrative, because the mother was not directly threatened by the former
boyfriend. Nevertheless find the mother’s explanation is unreasonable, since
this is a significant omission from the narrative, and goes to a central
element as to why she fled Venezuela, since she lists the former
boyfriend as a feared agent of harm and is a central element of her daughter’s
claim that her former boyfriend remains interested in causing her harm today.
Therefore, relating to the testimony that the principal claimant’s former
boyfriend accosted her, I find that the mother’s testimony is not credible in
this regard. It is a significant omission that goes to a central element of the
claim. On a balance of probabilities, the principal claimant and her mother
embellished this story in order to bolster the principal claimant’s refugee
claim.
[sic]
Mr. Luyt argues that the above finding
was unjustified because Ms. Molina Sanchez did not rely upon this history
of family conflict as a reason for leaving Venezuela. Instead,
her fear was based solely on an alleged history of politically motivated
threats to her safety made mainly over the telephone. Mr. Luyt contends
that the Board elicited evidence of threats directed against Ms. Molina Sanchez
by her daughter’s former boyfriend under questioning and that this evidence was
not material or central to the claim. In the result, it was unreasonable for
the Board to draw an adverse credibility inference from Ms. Molina Sanchez’s
failure to refer to these events in her PIF. Support for this is said to be
found in the following passage from the decision of Justice Anne Mactavish in KIN
v Canada (MCI), 2005 FC 282, 270 FTR 282:
[22] The only real negative finding
that the Board made with respect to K.I.N.’s credibility arose out of the fact
that her PIF did not mention the religious harassment that she says her
children experienced in school.
[23] Not every omission from an
applicant's PIF will, however, be determinative of the individual's
credibility: Akhigbe v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 249, [2002] F.C.J. No. 332 (FCTD) online: QL. The nature
of the omission, and the context in which the new information is brought
forward, have to be examined in order to determine the materiality of the
omission.
[24] In this case, a review of the
transcript discloses that K.I.N. did not volunteer this information in what
could reasonably be perceived as an effort to embellish her claim. Instead, it
was only in response to a direct question from the presiding member as to
whether her children had encountered any problems, apart from physical attacks,
that K.I.N. mentioned the harassment that her children had encountered at
school.
[9]
Although
I readily accept the point made in the above passage, I do not agree that it
applies to Ms. Molina Sanchez’s evidence. When the Board initially asked
Ms. Molina Sanchez about the sources of her fear, she volunteered that the
list of persecutors included her daughter’s boyfriend and vaguely linked him to
the political groups who had also ostensibly targeted her. The Board found
that Ms. Molina Sanchez added this risk element to her story to embellish
her daughter’s claim to protection. That was a reasonable evidence-based
finding that is not open to challenge on judicial review.
[10]
Mr. Luyt
also challenges the reasonableness of the Board’s finding that it was not
plausible that the dangerous groups that had repeatedly threatened Ms. Molina
Sanchez had never acted on the threats. However, this finding was not made in
isolation; it was part of a range of evidentiary observations made by the Board
about the overall quality of Ms. Molina Sanchez’s evidence. The Board
described Ms. Molina Sanchez’s evidence as unpersuasive, lacking in
detail, vague, embellished and insufficient. Those descriptors fairly
characterized her testimony which was, on the whole, highly improbable. Though
the Board and her own counsel repeatedly pressed her to offer details about the
threatening calls, she was unable to provide meaningful and consistent answers,
particularly about the purpose of the calls.
[11]
At
several points in her testimony she indicated that she was repeatedly called
(often several times a day) over several months by persons identifying
themselves variously as members of the FARC, the Tupamaro and the Bolivian
Circles who threatened her with death, kidnapping and extortion because she was
ostensibly “in their way”. Despite this unusual level of telephone contact,
nothing actually happened to Ms. Molina Sanchez. It was in this
improbable context that the Board expressed its doubts about her credibility.
[12]
The
Board reasonably found that her profile as a political organizer ought not to
have made her the target of persistent harassment and that she did not present
a realistic target for a kidnapping at the hands of any of the several groups
she claimed to fear.
[13]
In
the end, the Board found that her story was unpersuasive and that she had
failed to establish that she faced a risk upon a return to Venezuela. This was a
reasonable conclusion and it cannot be impeached on judicial review.
[14]
Mr. Luyt
also objects to the Board’s treatment of a brief letter from Ms. Molina Sanchez’s
cousin who claimed to have witnessed some of the threatening calls and to have
seen a note left on Ms. Molina Sanchez’s car which stated “Take care of
your money because we will soon need it”. The Board gave this evidence little
weight because it was insufficiently detailed and because the accuracy of its
contents could not be verified.
[15]
I
agree with Mr. Luyt that if the Board was saying that the cogency of
third-party evidence of this type would be diminished by the absence of sworn
verification, it would constitute a legal error. There is no such duty upon a
claimant and, if there was, the Board could not receive third-party evidence of
this sort unless by affidavit or in person. However, I take the Board to be
saying only that the cousin’s letter was unsupported by objective corroborative
evidence. Ms. Molina Sanchez failed to produce any telephone records to
corroborate these calls and, given their importance to her claim, it seems more
likely that this failure was the source of the Board’s concern about
verification. In any event, I do not view this issue as sufficiently material
that it would undermine the Board’s other concerns about the letter and
Ms. Molina Sanchez’s evidence in general.
[16]
While
the Board’s reasons for dismissing this claim could have been better written,
the Court can, on judicial review, examine the evidence to assess on its own
the reasonableness of the outcome: see Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 15,
[2011] SCJ no 62 (QL). Having done that, it is quite apparent that the Board’s
credibility concerns are entirely justified and its decision to reject this
claim is within the range of acceptable outcomes. In the result, this
application is dismissed.
[17]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed.
"R.L.
Barnes"
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