Date: 20110622
Docket: IMM-4759-10
Citation: 2011 FC 744
Ottawa, Ontario, June 22,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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JORGE EDUARDO PINA GAETE
MARIA TERESA SILVA RIQUELME
JORGE ADRIAN PINA SILVA
YERKO MICHEL PINA SILVA
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Applicants
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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]
The
applicants are a family from Santiago, Chile. Their
refugee claim was based on a risk to their lives or of serious harm from a gang
of drug dealers. The father and principal applicant (“male applicant”), travelled
to Canada on March 4,
2005. The mother (“female applicant”), together with the applicants’ children,
came on October 10, 2007. The male applicant made an unsuccessful attempt to
obtain sponsorship through his employer. The family then filed for refugee
status on March 8, 2008.
[2]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on July 15, 2010, by the Refugee Protection Division of the Immigration and
Refugee Board wherein the applicants were found not to be Convention refugees
or persons in need of protection.
[3]
The
Board concluded that the applicants did not satisfy the burden of establishing
a serious possibility of persecution on a Convention ground, or, that they
would personally be subjected, on a balance of probabilities, to a danger of
torture, or of a risk to life or a risk of cruel and unusual treatment or
punishment if returned to Chile. The Board found the male applicant and female
applicant’s evidence not to be credible and drew negative inferences from a
lack of corroborating evidence, as well as the male applicant’s three-year
delay in claiming protection.
ISSUES
[4]
This
application raises the following questions:
1)
Were the
Board’s credibility findings reasonable?
2)
Did the
Board reasonably conclude that the male applicant had a lack of subjective fear
due to his 3-year delay in claiming protection?
ANALYSIS
Standard of Review
[5]
A
reviewing court may not substitute its opinion for that of the decision-maker
and can only interfere with a board’s findings of fact, including credibility
findings, if the board’s decision was erroneous, made in a perverse or
capricious manner or without regard for the material before it: Federal
Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d); Diabo v. Canada
(Minister of Citizenship and Immigration), 2004 FC
1772 at para. 3; Chavarro v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1119 at para. 24. The Board is in the
best position to gauge the credibility
and plausibility of a refugee claimant's story, as well as the factual
evidence that comes before it: Aguebor v. Canada (Minister of
Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732 (QL),
160 N.R. 315.
a.
Were
the Board’s credibility findings reasonable?
The Male Applicant’s
Credibility
[6]
The
Board made a negative credibility finding from the fact that there was
documentary evidence to support the male applicant’s involvement in the scout
movement between 1988 and 1998 but nothing to show that he was engaged in
activities past that point and especially in 2004 when the alleged anti-drug
campaign was said to have taken place. Moreover, there was an absence of any
persuasive evidence indicating that there was an anti-drug campaign at all. A
letter from an individual claiming to be a leader of the scout group was in
evidence. It confirmed his earlier involvement.
[7]
The
applicants rely on the case of Mahmud v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 729 (QL), 167 F.T.R.
309 for the proposition that a board must consider letters for what they say,
not for what they do not say. In Mahmud, however, the letters submitted
had the purpose of establishing the applicant’s membership in a social group,
namely the Jatiya Jubo Sanghati, which was the youth wing of the Jatiya Party
in Bangladesh. They also
appeared to show that charges had been laid against him on account of his
political involvement. This is distinguishable from the case at bar where the
purpose of submitting the letter regarding the scout movement appears to have been
to demonstrate Mr. Pina Gaete’s involvement in that movement during the time of
the purported anti-drug campaign. It did not do this.
[8]
A
board or tribunal may discount the weight of a letter if it fails to address
vital aspects of a claim: Lebbe v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1239, 118 A.C.W.S. (3d) 872 at
para. 8.
[9]
Here,
the letter submitted by the applicants reads as follows:
I hereby certify that
Mr. Jorge Eduardo Pina Gaete, with ID No. […], actively worked with our group
from 1988 to 1998, as a Troop Assistant.
During this period of
time, Mr. Pina proved to be a very responsible person who abided by the values
and principles of the Scouts movement.
I am writing this letter
at the request of the interested party and for all the legal purposes that he
may deem appropriate.
[10]
There
is no reference in this letter to an anti-drug campaign. It was therefore open
to the Board to make a negative credibility finding from the lack of evidence pointing
to the existence of such a campaign and/or the male applicant’s involvement in it.
Given how central this was to the applicants’ refugee claim, the Board’s
conclusion was reasonable.
[11]
The
applicants also take issue with the fact that the Board did not believe the
applicant had gone to see the drug gang leader El Cholo or that his son, Jorge,
had been assaulted by El Cholo’s son. The Board noted that the applicant did
not report his son’s assault to the police and concluded that there is no
persuasive evidence that the assault took place. Second, the Board found the male
applicant’s testimony with respect to how he knew El Cholo to be confusing and
inconsistent with commonsense and rationality:
Mr. Pina said he did not
know El Cholo before he went to see him, so why did he need to “gather
strength” to go and talk to a child’s parent since he didn’t know at the time
that the child’s father was a drug dealer? Bearing in mind the child is only
13 years old. The panel notes the answer Mr. Pina gave when he was asked, how
long have you known El Cholo, he said at the time I went to speak to him. How
did you know he was a drug trafficker; he was well known all over the
neighbourhood as a drug trafficker. The panel finds the response confusing and
inconsistent with commonsense and rationality, for if El Cholo was a well known
drug trafficker in the neighbourhood, how could he not have known him when he
testified that everybody knew him. As such, the panel rejects the allegation
that his son was assaulted and he went to see the assailant’s parents.
[12]
In
light of the inconsistent testimony given by the male applicant with respect to
how he knew El Cholo, together with the lack of any evidence that might
corroborate the 2004 assault, it was reasonable for the Board to reject the
allegation that Jorge was assaulted and that the male applicant went to see the
assailant’s parents.
[13]
It
was also open to the Board to conclude the applicant was evasive and not
straight forward in his responses to the line of questioning that revolved
around whether he followed up with the police after his house had come under
attack. Seeing as the Board is in the best position to assess credibility and
plausibility of a claimant’s story and from reading the transcript on this
point, this finding is one that fell within the wide 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 at para. 47.
[14]
In
oral testimony, the applicant said he received four threatening notes between
February and March, 2005. However, when asked where the notes were, he said
they “disappeared, they got lost. I never kept them”. No mention was made of
these notes in his personal information form (“PIF”) and when asked why not, the applicant responded that
it never occurred to him that they would be important. They were also not
reported to the police when there was an on-going police investigation. It was
not unreasonable for the Board to find that there were no notes and to reject
the allegation that they were left under the door of the applicant’s house.
[15]
It
was also reasonable for the Board to accept that the applicant’s son was
attacked and his video camera stolen but to conclude that it had nothing to do
with El Cholo. First, there was no evidence to suggest that it did; and second,
it was the mother of one of the assailants, Jorge Ojeda Miranda, the wife of El
Cholo, who returned the camera. The Board reasonably concluded that it was
inconsistent with common sense and rationality that the wife of El Cholo, “this
dangerous drug dealer”, would return a camera that their son had stolen.
The Female Applicant’s
Credibility
[16]
The
Board did not believe the female applicant when she said she discovered that
her telephone line was tampered with. This was because the female applicant
testified that the police had checked her phone and found that it was not
working. The Board held that if there was tampering with the line the police
would have discovered it when they checked the phone.
[17]
In
another instance, the female applicant testified that her son continued to be
harassed up until 2006 because of his involvement in the scout movement. But, as
the Board rightly noted, this was inconsistent with the male applicant’s
testimony, which she explicitly supported. The male applicant had testified
that things had calmed down a couple of months after he left Chile in 2005. Her
evidence surrounding the violent robbery of her son, and her explanations for
why she opened, closed and re-opened the investigation file were also reasonably
held to be inconsistent, confusing and implausible.
[18]
The
applicants submit that the Board committed serious reviewable errors in finding
that the female applicant was not sexually assaulted. They base this on the
fact that the Board questioned the timing of when she screamed for help during
the alleged assault and that she did not call the police to report it. However,
these findings must be read in the context of the Board’s assessment of the
female applicant’s credibility. Examining the decision as a whole shows that the
Board’s analysis on this point was reasonable.
[19]
The
principal applicant’s personal narrative, also attached to the female
applicant’s PIF, explained that she yelled for help and two men came to her
rescue. Other evidence suggested it was dark, during winter and there were no
people on the street because it was so late at night. It was therefore reasonable
for the Board to question from where these two men who rescued her suddenly
came.
[20]
The
Board also found that not calling the police or allowing the two men who
allegedly rescued her to call the police undermined her credibility. Although
refugee claimants cannot always be expected to report sexual assaults, in the
circumstances of this case, it was open to the Board to question what occurred
in this instance.
[21]
The
female applicant had called the police a number of times when she feared for
her children’s safety. They checked in on the children and interacted with the
female applicant on several occasions. She also reported the stolen camera to
them. Although this does not necessarily imply that she should have reported the
assault, it does offer perspective with respect to the relationship the female
applicant had with the police, namely, one with open lines of communication and
at least some level of ease. It was thus open to the Board not to believe that the
reason the female applicant did not report the sexual assault was because she
was scared.
[22]
The
Board demonstrated an awareness of the Gender Guidelines by noting that
not every victim of sexual assault will seek medical attention or report the
matter to the police. In any event, the credibility finding with respect to the
female applicant was based largely on other factors such as her support for her
husband’s account and inconsistencies between the two of them.
2)
Did
the Board reasonably conclude that the male applicant had a lack of subjective
fear due to his 3-year delay in claiming protection?
[23]
The
jurisprudence has established that the delay of a refugee claim is related to
the existence of a subjective fear of persecution: Heer v. Canada (Minister
of Employment and Immigration), [1988] F.C.J. No. 330 (QL) (FCA); Espinosa
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1324 at para. 16 and 21. A long
delay points to a lack of subjective fear.
[24]
Here,
the Board was justified in concluding that the male applicant’s substantial
delay in making a refugee claim undermines his allegation that he and his
family face serious harm in Chile if they were to return. The male applicant
arrived in Canada in March 2005
and filed for refugee status only in March 2008, only after he sought
sponsorship through a company with which he was employed, and that avenue
failed. It was reasonable for the Board to question his explanation that he did
not know he could seek refugee status and to conclude that the male applicant
lacked subjective fear.
[25]
No
questions were proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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