Date: 20090505
Docket: IMM-3866-08
Citation: 2009
FC 455
Ottawa, Ontario, May 5, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ANTONIO YNES
ALEMAN PENA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is
an application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated August 14, 2008, wherein the
applicant was found not to be a Convention refugee nor a person in
need of protection under sections 96 and 97 of the Act on the basis
that his claim was not credible.
I. The facts
[2]
The
applicant, a citizen of Cuba, left his country for Canada in February 2006 and made his
claim for asylum on May 23, 2006.
[3]
In 1983,
the applicant would have been unfairly accused of fraud and sent to jail for
almost two years. He later returned to work as an administrator for his government
and worked
for minimum wage.
[4]
According
to his scenario, in December 2004, he started a second job, delivering rental
videos to certain customers. He was arrested by the police a second time in
September 2005, and jailed for one day because the videos he was delivering
were allegedly considered anti-revolutionary. Released after one day, he was
told to report to the police station every week.
[5]
Arrested
again on October 3, 2005 for failing to report, he would have been told that he
would be trialed and imprisoned for delivering anti-revolutionary videos. Four
months later, he managed to leave Cuba for Canada where his daughter was living.
II. Issue
[6]
Did the Board make an
unreasonable decision in determining that the applicant was not credible?
III. Analysis
Standard of review
[7]
As a result of the recent decision of the Supreme Court of Canada
in Dunsmuir v. New Brunswick, 2008 SCC 9, 164 A.C.W.S. (3d) 727 (Dunsmuir),
it is now trite law that credibility and fact findings are reviewable on the reasonableness
standard. This is a deferential standard, leaving administrative tribunals a
margin of appreciation as long as its decision falls within the range of “acceptable
and rational solutions”. As the Supreme Court of Canada put it, reasonableness
is concerned with “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, para. 47).
Credibility
issue
[8]
The
present case is clearly one of credibility as the Board, at the very beginning
of its decision, indicated that it did not find the applicant’s testimony and
story of persecution to be credible.
[9]
The
applicant contends that the Board wrongfully dismissed his case in alleging
credibility issues, and accuses the board member not to have taken into
consideration the predominant motive for his claim.
[10]
The
Court has read the file and the transcript of the hearing and concludes that
the Board was founded to draw several negative findings with regards to the
applicant’s credibility and to relate most of
them to contradictions and implausibility bearing on central elements of his
asylum claim and the appreciation of his story.
[11]
The
applicant had the burden to convince the Board that the allegations of his
claim were well-founded; but unfortunately, he failed to do so “on a balance of
probabilities”.
[12]
Based
on criteria of rationality and common sense, it was open to the Board to find
it implausible for instance that the applicant was able to deliver videos three
times a week during eight months while having to report weekly to the police
who waited all this time before arresting him.
[13]
It
was also open to the Board to take into consideration contradictions between
his testimony and his Personal Information Form, with regards to what the police
told him and incidents involving the police and regarding his alleged
anti-revolutionary activities (Abbasi v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 58 (Q.L.)).
[14]
The
applicant contends that the Board lacked the expertise to conclude that the
three subpoenas produced in evidence by the applicant in support of his story
requesting him to appear at the Popular Municipal Court were not trustworthy.
The Board did not need an expert to see that two of these subpoenas bore manual
alteration of the year, and that although bearing different dates, the three
subpoenas had identical content with no indication of order, and that he had
been accused of committing “illegal economic activity” for not having, as he
finally admitted, the permit to deliver videos.
[15]
The
Board did not need to be an expert to also conclude that those documents had no
connection with the applicant’s contention that they were issued as a result of
his alleged anti-revolutionary activities.
[16]
The
assessment of those documents, contrary to the applicant’s contention, was well within the Board’s expertise. “The issue of credibility
is a question of fact that is within the expertise of the Board members who may
question the authenticity of a document when there is enough evidence
supporting this conclusion.” (Akindele v.
Canada (Minister
of Citizenship and Immigration) 2002
CFPI 37). Here, the Board
founded its conclusion on several inconsistencies and improbabilities that were
evident in the documentation provided by the applicant.
[17]
The
applicant is asking more or less this Court to analyse and appreciate the proof
and conclude differently than the Board did. However, this is not the role of
this Court. The Board with the benefit of its expertise has heard the applicant
and is therefore in a much better position than this Court to weigh the
evidence, its weaknesses and strength, and decide on its acceptability and the
applicant’s credibility.
[18]
The reasons given
by the Board are not to be read hypercritically nor was the Board required to
refer to each piece of evidence received (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425). The Court reviewing the Board’s
decision on a standard of reasonableness only has to verify whether the decision falls within a range
of possible and acceptable outcomes which are defensible in respect of the
facts and the law.
[19]
The
present affair turns on the applicant’s failure to establish with credible and
trustworthy evidence the main subject of his claim. Unfortunately for the
applicant, the Board found that he was totally untrustworthy and lacking any
credibility about his own personal situation; after reviewing the evidence, the Court cannot see that this finding of the Board
was unreasonable.
IV Conclusion
[20]
Overall,
the applicant failed to show this Court that the impugned decision is unreasonable. Therefore, this application
for judicial review will be dismissed.
[21]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING
REASONS, THE COURT dismisses the application.
“Maurice E. Lagacé”
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