Date: 20070829
Docket: IMM-4376-06
Citation: 2007 FC 862
Ottawa, Ontario, August 29,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
WILFREDO
GUERRA RIVERA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Wilfredo Guerra Rivera for judicial review challenging a
negative decision by the Refugee Protection Division of the Immigration and
Refugee Board (Board) rendered on July 19, 2006.
Background
[2]
Mr.
Rivera claimed that he had fled El Salvador in 2005 to escape
harassment and persecution arising from his sexual orientation as a gay
cross-dresser. He alleged that he had been victimized on many occasions from
about the age of 9. This included rape, police abuse and gang harassment.
During Mr. Rivera’s initial Port of Entry (POE) interview he made no mention of
his sexual orientation but later claimed that it should have been obvious. He
also attributed this failure to the “threatening” and “intimidating” demeanour
of the immigration official who conducted the interview. This, he said, caused
him to be forgetful, vulnerable and confused. At this stage his claim to
protection was based only on an allegation that he had been threatened as a
witness to a murder. The issue of Mr. Rivera’s sexual orientation as the
motivating factor for his protection claim only arose later, in his Personal
Information Form (PIF) declaration. His PIF, however, made no mention of risk
based on being a witness to a murder. It was not until he amended his PIF a
few days before the Board hearing that the incident of the alleged murder was
reintroduced into his risk narrative. All of these issues figured prominently
in the refugee hearing and formed the basis for the Board’s credibility
findings.
The Board Decision
[3]
The
Board was concerned with Mr. Rivera’s changing narrative. It did not believe
his explanation for the failure to disclose at the POE his alleged history of
persecution based on his sexual orientation. He attempted to excuse that
failure by accusing the immigration officer of intimidation and by saying that
he was not specifically asked about his sexual orientation. He also challenged
the accuracy of the interview notes and suggested that the Officer should have
intuitively understood that he was gay. The Board did not accept any of these
explanations. The Board also identified a supposed inconsistency in Mr.
Rivera’s evidence as to the frequency with which he dressed as a woman in El Salvador. It is
clear from the Board decision that it did not believe any of Mr. Rivera’s
evidence as it related to risk and found him not to be a credible witness. It
was on that basis that it rejected his claim to protection.
Issues
[4]
(a) What
is the standard of review for the issues raised on this application?
(b) Did
the Board commit any reviewable error in its decision?
Analysis
[5]
The
issues raised on this application involve challenges to the Board’s credibility
and factual determinations, and also relate to the weighing of evidence. These
are all issues for which the standard of review is patent unreasonableness:
see Perera v. Canada (Minister of
Citizenship), 2005 FC 1069, [2005] F.C.J. No. 1337 at para. 14.
Although the Applicant has also raised an issue as to the sufficiency of the
Board’s decision, I can find no error in that regard and it is, therefore,
unnecessary to carry out a separate pragmatic and functional analysis for that
issue.
[6]
Mr.
Rivera was clearly not a credible witness and the Board’s rejection of his testimony
was well-founded. The Board’s principal credibility concern arose out of the
significant discrepancies in Mr. Rivera’s evidence of persecution in El Salvador. When he
first arrived in Canada and was interviewed on November 24, 2005, he
claimed to be at risk because he had witnessed a gang murder and was threatened
with death if he reported what he had seen. In the notes of this interview Mr.
Rivera advised the Officer that the assailant had threatened “if you say
anything, you’ll be next.”
[7]
When
Mr. Rivera completed his initial PIF declaration on December 21, 2005, he made
no mention whatsoever about being at risk as a witness to a murder. Instead,
his claim to protection was based on a detailed 9-year history of sexual
assault and abuse based on his purported orientation as a gay transvestite. A
few days before the Board hearing, Mr. Rivera amended his PIF and again
reported that he had been a witness to a murder but in this version the threat
made against him was stated to have been: “if you talk, you are next,
faggots!”
[8]
Needless
to say, the Board was troubled by these variations in Mr. Rivera’s narrative
and he was questioned closely about the obvious inconsistencies and changes.
His answers to these questions did nothing to rehabilitate his credibility and
the Board had an ample basis for rejecting that testimony. In one particularly
telling exchange, Mr. Rivera struggled to explain his failure during the POE interview
to inform the Officer of his sexual orientation and its significance to his
refugee claim:
PRESIDING MEMBER: The reason I’m asking you
these questions is I’m wondering why you did not tell Citizenship and
Immigration Canada about your homosexual problems and instead told them the
story about a bus driver getting shot.
CLAIMANT: The thing is that she told me
many things. She told me that I was a liar.
INTERPRETER: And liar has been said in
masculine, Mr. Member.
CLAIMANT: She confused me a lot. She
screamed at me. She intimidated me a lot, and I forgot things.
PRESIDING MEMBER: Including the main reason why
you were afraid to go back to El
Salvador.
CLAIMANT: Yes.
PRESIDING MEMBER: Okay.
COUNSEL: You said that you forgot
things, but earlier you said you didn’t forget that you were gay. So, is there
any other reason that you didn’t tell her that you had problems because you
were gay?
CLAIMANT: Because she never asked that
to me either.
PRESIDING MEMBER: You see, we’re right back to
where I was trying to understand this. Did she ask you if the bus driver had
been shot by a gang?
CLAIMANT: No. She asked me - - she told
me to tell her what were my problems in El Salvador.
[9]
When
Mr. Rivera was questioned about the PIF omission concerning the incident of
witnessing a murder, he again weakly attributed the problem to failed memory.
His testimony to that effect was as follows:
PRESIDING MEMBER: No mention. No mention of
gangs. No mention of threats from a gang, and I’m trying to understand why
only a week before your refugee hearing, after signing the first narrative, do
you make an amendment or an addition and add the gang problems to your story.
CLAIMANT: I’m sorry, I had forgotten
it.
[10]
There
were many other credibility problems noted by the Board in its decision
including its rejection of his evidence that the POE interview notes were
inaccurate. The Board’s finding on that issue was entirely consistent with the
evidentiary record and was as follows:
The claimant initially stated that the
SIO’s notes were inaccurate, but when taken through the notes line by line, the
claimant verified the accuracy of the statement made with only small
variations. I thus find the SIO’s notes to be a fairly accurate and reliable
rendition of the claimant’s response when asked by the SIO to describe the
claimant’s fear in El
Salvador. The
differences pointed out by the claimant were inconsequential.
[11]
There
is only one credibility finding in the Board’s decision that appears tenuous.
The Board found an inconsistency between Mr. Rivera’s PIF declaration that he liked
dressing as a woman since the age of 14 and his testimony that he ordinarily
dressed as a man in El Salvador. I agree with counsel for Mr. Rivera that the
PIF statement (“I liked dressing up in woman’s clothes since I was 14”) merely
confirmed his purported interest in dressing as a woman from an early age but
said nothing about the frequency with which he acted upon that interest. In
the result, this particular finding was perverse and inconsistent with the
evidence.
[12]
Notwithstanding
this error in the Board’s factual analysis, it is not sufficient to overcome
the overwhelming weight of his remaining testimonial failings. Simply put, the
central aspects of Mr. Rivera’s story were either implausible or rife with
inconsistencies and his credibility would not have been redeemed had the Board
not erred on this point.
[13]
It
was argued on behalf of Mr. Rivera that the Board erred by failing to consider
his testimonial frailty with sufficient sensitivity. While the Board must be
alive and sensitive to the reasons why victims of persecution may have problems
in testifying, that responsibility does not oblige the Board to abandon
reasonable incredulity at the door. Mr. Rivera’s problems as a witness went
far beyond the kinds of issues that could be explained simply by modesty or
vulnerability; and certainly, it was not unreasonable for the Board to
attribute those problems to an absence of credibility.
[14]
It
was also argued on behalf of Mr. Rivera that the Board erred by failing to make
clear findings with respect to his sexual orientation – in particular whether
the Board believed that he was gay. Even where the Board clearly rejected all
of the central aspects of Mr. Rivera’s claim, he contends that as a gay
cross-dresser the Board would still be obliged to consider the evidence of
generalized risk in El Salvador by virtue of that status.
[15]
It
certainly seems that the Board did not believe Mr. Rivera was a cross-dresser
and believed his presentation during the hearing to be a put-on. The decision
noted that he “had pulled out no stops” in his appearance before the Board.
The Board’s scepticism is evident in the following passage from the decision:
While the Board recognizes that
appearances can sometimes be deceptive, it is also imperative that decisions be
formed on the totality of the evidence. Visual appearance is, therefore part
of the evidence. Having seen the claimant dressed like a woman at his hearing
and carefully examining the various photographs (above noted) it is apparent to
me that the photographic evidence would not lead me to conclude that I was
dealing with either a homosexual or a cross-dresser. Had that been the case,
there would have been little point for the claimant to have appeared for his
hearing dressed in a bare shouldered and immaculately coifed manner. Thus, I
am unable to accept the claimant’s statement that the ISO should have
immediately recognized the claimant’s sexual proclivities.
[16]
While
it is certainly preferable for the Board to make clear and unequivocal findings
on matters such as this, I am satisfied that the Board did not believe that Mr.
Rivera was either gay or a cross-dresser and that it did not limit its finding
on this issue to how he would be perceived by others. That becomes evident
after reviewing the decision in its entirety against the Board’s concluding
remarks which were:
In Sheikh, MacGuigan, J. A. held:
I would add that in my view, even without
disbelieving every word an applicant has uttered, a first-level panel may
reasonably find him so lacking in credibility that it concludes there is no
credible evidence relevant to his claim on which a second-level panel could
uphold that claim. In other words, a general finding of a lack of
credibility on the part of the applicant may concurrently extend to all
relevant information emanating from his testimony.
The above decision is relevant in this
claim. The Board finds the claimant so lacking in credibility with respect
to central issue of his sexual identification as discussed above that it finds
a general lack of credibility with respect to all relevant testimony arising
from his testimony. It follows that the panel is left without the
necessary credible evidence required in order to reach a positive conclusion
with respect to the claim.
[Emphasis added]
[17]
Having
disbelieved all of the material aspects of Mr. Rivera’s story, it was
inevitable that the third party evidence tendered to bolster his evidence
attesting to his sexual orientation and presentation would also be rejected.
The letter from his ESL school which verified his presentation there as a
cross-dresser did not add much to his similar presentation to the Board. The
Board was clearly unconvinced on that point and it had good reasons for its
scepticism. Although it is good practice for the Board to expressly comment on
evidence of this sort in its decisions, it is not obliged to do so in cases
where the claimant’s underlying evidence is reasonably found to be unreliable
and is rejected on that basis: see Castillo Sanvincente v. Canada (Minister
of Citizenship), 2007 FC 572, [2007] F.C.J. No. 765, at para. 18.
[18]
Counsel
for Mr. Rivera conceded during argument that in the face of a finding that
Mr. Rivera was not gay or a cross-dresser, there was no basis for the
Board to go on to consider the issue of generalized risk in El Salvador. In the
result, the Board did not err by declining to consider this issue.
[19]
In
conclusion, I can identify no material deficiencies in the Board’s assessment
of this protection claim and, accordingly, Mr. Rivera’s application is
dismissed.
[20]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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