Date:
20120302
Docket:
IMM-3611-11
Citation:
2012 FC 285
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 2,
2012
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
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ROGELIO MILIAN PELAEZ
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Applicant
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and
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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 of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel) dated April 12,
2011, that the applicant is not a refugee under the United Nations’
Convention relating to the Status of Refugees or a person in need of
protection as these expressions are defined in sections 96 and 97 of the Immigration
and Refugee Protection Act (the Act).
[2]
For
the reasons described below, the Court finds that this application must be
allowed.
I. Facts
[3]
The
applicant, Rogelio Milian Pelaez, was born on September 8, 1975, and holds
Guatemalan citizenship. He alleges that he worked as a bodyguard for Maegli
Novella, a businesswoman, from 2001 to 2003.
[4]
One
of his bodyguard colleagues told him that a gang of kidnappers was preparing to
kidnap Ms. Novella. Despite the fact that he had been threatened with
death if he did not participate, he chose to tell Ms. Novella what was brewing.
She apparently then complained to the police, which led to the imprisonment of
one of the members of the kidnappers’ gang, nicknamed El Cachorro.
[5]
After
conducting her own investigation, Ms. Novella suggested that the applicant
flee the country because his life was in danger. The applicant alleged that,
before leaving Guatemala, he drove his family to a small community located a
hundred kilometres from Guatemala City so that they would be safe.
[6]
The
applicant then went to the United States, where he lived between March 2003
and April 2005.
[7]
On
his return to Guatemala, the applicant did not return to live in Guatemala City
but chose to move to Santa Cruz El Chol, where he worked as a minibus driver.
[8]
At
the end of May 2008, he was apparently found by El Cachorro while he was
driving his minibus. El Cachorro, accompanied by three other people, allegedly
hit him with his revolver after putting it in the applicant’s mouth. His
attackers fled when the passengers started yelling, but first told him that
they would kill him if they saw him again.
[9]
The
applicant then complained to the police. The police officer to whom he
complained called him two weeks later to advise him to leave the country,
having himself been the target of gunfire and having lost a child following the
altercation.
[10]
The
applicant again fled Guatemala on June 20, 2008, and went to the Canadian
border where he made a claim for refugee status on July 18, 2008.
II. Impugned decision
[11]
The
panel found that the applicant’s testimony contained implausibilities,
inconsistencies and contradictions that seriously compromised his credibility. Thus,
in a short decision, it denied the refugee claim on the following grounds:
[Translation]
a. The applicant
states that he left Guatemala for the United States in April 2003 because
he feared for his life, but he never thought of filing a claim for asylum with
the American authorities.
b. The applicant
claims that he returned to Guatemala in March 2005 because he missed his family,
but fled the country alone again in July 2008. What is more, his voluntary
return to Guatemala is inconsistent with his allegations of fear for his life.
c. At the
hearing, the applicant alleged that he was threatened and physically assaulted
in May 2008 at the wheel of the minibus he was driving. Yet, at the
interview with an immigration officer on September 2, 2008, less than two
months after he arrived in Canada, he stated that he had a not been threatened
because he was driving. Moreover, the applicant was not able to explain why he
would be threatening to his alleged attackers and why they would not have
killed him immediately instead of continuing to threaten him.
III. Issue
[12]
The
only issue in this case is whether the panel erred in finding that the
applicant lacked credibility.
IV. Analysis
[13]
In
matters of credibility, it is well established that this Court cannot
substitute its opinion for that of the panel, unless the applicant can show
that the panel’s decision was based on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it: see Federal Courts Act, RSC 1985, c F-7,
paragraph 18.1(4); Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190.
[14]
In
this case, I find that the applicant has succeeded in demonstrating this. Dealing
first with the fact that he did not claim asylum in the United States, the
applicant explained that he never intended to live in the United States and
that he wanted only to temporarily flee his country so that he would be
forgotten. He also maintained that a claim for asylum would have been illusory
in the United States anyway, since legislation in that country does not
recognize risks arising from crime, as was the case in Canada before section 97
was introduced in the Act. There is nothing ridiculous in these explanations
and they warranted at least being considered by the panel.
[15]
As
to the fact that the applicant returned to live in Guatemala in 2005, I find
that two factors must be taken into consideration. First, and contrary to what
the panel stated, the applicant did not return where the people that he feared
were, but rather went to a town located more than 100 kilometres and three
hours’ drive from Guatemala City where he lived before. Second, the applicant
chose to work in another field. The panel seems to have not taken into account
these explanations.
[16]
Further,
it seems illogical to criticize the applicant for attempting to relocate within
his own country. It is well established that a refugee claimant must prove that
he could not find refuge in his own country before claiming that status in
another country. The internal flight alternative is an integral part of the
notion of a refugee. With these principles in mind, it would be at the very least
paradoxical to hold against the applicant his attempt to flee from the threats
that he believed he was exposed to in another part of his country where he
thought he was safe.
[17]
It
is true that the applicant told the immigration officer that his attackers had
not threatened him because he was driving the minibus. However, it appears
risky to me to attach too much importance to these words. It is not a faithful
transcript of what the applicant said, but the summary of what the officer
understood from the applicant’s answers as translated by an interpreter. The
applicant also did not have the luxury of expanding on this topic because the
officer immediately changed the subject. Finally, this answer should have been
considered in taking into account the testimony of the applicant before the
panel and the documentary evidence he submitted.
[18]
This
is precisely where the problem lies. The applicant had filed several pieces of
evidence that corroborated his story, including a letter from the police
officer to whom he had made the complaint following the attack while he was driving
the minibus and a letter written by one passenger of the minibus who had
witnessed this attack. These two people had no personal interest in the
applicant’s claim.
[19]
The
respondent is correct in noting that the panel is presumed to have considered
all the evidence before it. The fact remains that, as expressed by Justice
Evans in Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, at para 17, 83 ACWS (3d) 264 (FCTD),
that “. . . the more important the evidence that is not mentioned specifically
and analyzed in the agency’s reasons, the more willing a court may be to infer
from the silence that the agency made an erroneous finding of fact . . .”.
[20]
The
above-noted letters, as well as the medical note given to the applicant by the
hospital where he had received care following the attack, were very relevant to
the disputed facts. The panel should not have overlooked this evidence and
ought to have explained why it considered it to be insufficient to corroborate
the applicant’s story. In neglecting to discuss it, the panel drew conclusions
without taking into account all the evidence before it.
[21]
For
all of the foregoing reasons, the application for judicial review must be
allowed. No question will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review is allowed.
No question is certified.
“Yves de Montigny”
Certified true
translation
Catherine Jones,
Translator
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