Date: 20110616
Docket: IMM-5255-10
Citation: 2011
FC 710
Toronto, Ontario,
June 16, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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IVAN LUNA ROJAS,
SERGIO ANDRES LUNA NINO,
ANDREA JULIANA LUNA NINO,
OLGA LUCIA NINO PUENTES
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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 ORDER AND ORDER
[1]
The
present Application is a challenge to a decision of the Refugee Protection
Division in which the Applicants’ claim for protection was rejected on the
principal ground of a global negative credibility finding.
[2]
The key
factual “allegations” which found the Applicants’ claim are stated by the RPD
as follows:
The
principal claimant [Ivan Luna Rojas] and his wife, Olga Lucia Nino Puentes, are
41 and 46 years old, respectively. In 1997, he worked in Cali as pastor for a church of the Apostolic Church of Jesus
Christ. That year, he was approached by two National Liberation Army (ELN) men,
who wanted to use his church as a safe haven for wounded comrades. He refused
for fear of the authorities. They threatened him and took the church money he
had. Later, they returned and threatened to harm his child, Sergio. They came
almost every month to take the church money he had. He confided these problems
to his supervisor pastor, who advised him to wait out the situation. In March
1998, he requested a transfer to Bucaramanga, but the church organization could only
offer him a post in Floridablanca, near Bucaramanga. At that time, he received an invitation
for a church convention in Florida, U.S.A. With this letter, he and his family were
able to obtain visitors’ visas to the U.S.A. He sold his car and properties he owned
in Cali, quit work and moved his family to his
wife’s parents’ home in Bucaramanga. However, he received calls from
unidentified people saying he could not escape, that he and his family had been
found.
(Decision, para. 3)
[3]
The RPD
rejected the evidence just quoted on the basis of the following implausibility findings:
The
determinative issue in this case is credibility and, in relation to that, the
well-foundedness of the claimants’ fear. The panel finds the principal claimant’s story not to be
wholly credible in its material aspects due to the following reasons.
The
principal claimant had said that when the ELN requested he let them use the
church to house their wounded, he refused, and they left after making threats
and taking the church money with them. The panel finds it hard to believe
and, in fact, incredible that the ELN had not simply I taken over the
church building, if they truly needed it for their wounded comrades.
Furthermore, the principal claimant said they kept coming back periodically to
take the church money, which was about equivalent to $40, $100, or $150
Canadian dollars each time. He admitted also that the church was in the middle
of Cali, where there were a lot of businesses. The
panel finds it incredible that the ELN would waste their time on robbing
him of church money which was a pittance compared to what they could get if
they extorted the businesses in the city. From these, the panel does not
believe, on a balance of probabilities, that he had been or is a target of the
ELN.
Furthermore,
he said that the ELN had warned him against reporting them to the authorities.
However, he had said that he knew the ELN had infiltrated the police force. The
panel does not find sense in these apparently contradictory statements. If
the ELN had, in fact, infiltrated the police force, what did they have to fear
then if he had reported his ELN problems to police? The ELN infiltrators could
simply squash or stymie any resulting investigation. The panel, therefore,
draws a negative inference from these, leading the panel to disbelieve his
claim that he was targeted or is a target of the ELN.
After
he had left the Cali church, he admitted that another pastor
had taken over the church there. When asked if the replacement pastor had
experienced the same or similar ELN problems, he had answered, “I don’t know.”
With the apparent interest the ELN had exhibited by periodically coming by,
particularly to take the church money, the panel asked if the ELN had not
simply gone to the church headquarters in Bucaramanga and extorted the
headquarters of money, as they would likely have more there than at a little
church. He said, “I don’t think so.” The panel finds it did not make sense
that the ELN kept coming by his church for the little money he had, but did not
target the church headquarters where they apparently could get more money. From
this, the panel does not believe, on a balance of probabilities, his story that
he had been extorted of church money and made a target of the ELN.
[Emphasis added]
(Decision, paras. 8 – 10)
[4]
The well
established standard against which the RPD’s implausibility findings are to be
judged is stated by Justice Muldoon in the decision of Istvan
Vodics v. Minister of Citizenship and Immigration, 2005 FC 783:
The tribunal adverts
to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a
refugee claimant swears to the truth of certain allegations, a presumption is
created that those allegations are true unless there are reasons to doubt their
truthfulness. But the tribunal does not apply the Maldonado principle to
this applicant, and repeatedly disregards his testimony, holding that much of
it appears to it to be implausible. Additionally, the tribunal often
substitutes its own version of events without evidence to support its
conclusions.
A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
In addition, I confirm my finding as expressed in Istvan
Vodics v. Minister of Citizenship and Immigration,
2005 FC 783:
It is not difficult to
understand that, to be fair to a person who swears to tell the truth, concrete
reasons supported by cogent evidence must exist before the person is
disbelieved. Let us be clear. To say that someone is not credible is to say
that they are lying. Therefore, to be fair, a decision-maker must be able to
articulate why he or she is suspicious of the sworn testimony, and,
unless this can be done, suspicion cannot be applied in reaching a conclusion.
The benefit of any unsupported doubt must go to the person giving the evidence.
[Emphasis added]
[5]
In my
opinion, it is readily apparent that the RPD in rendering the decision under
review disregarded the law with respect to making implausibility findings. As a
result, I find that the decision under review is not defensible on the facts or
law and is, therefore, unreasonable.
ORDER
THIS COURT ORDERS that:
The decision under review is
set aside and the matter is referred back to a differently constituted panel
for redetermination.
There is no question to
certify.
“Douglas
R. Campbell”
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