Date: 20070926
Docket: IMM-4727-06
Citation: 2007 FC 969
Toronto, Ontario, September 26,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MAIKEL
CHAVARRIA CHAVARRIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Maikel
Chavarria Chavarria is a citizen of Costa Rica who sought refugee
protection in this country, claiming to fear persecution at the hands of his
former girlfriend and her father. The Board rejected his claim, finding that
his story was not credible, and that, in any event, state protection was
available to him in Costa Rica.
[2]
Mr.
Chavarria asserts that the Board’s decision should be set aside, as the Board
failed to properly take into account the psychological evidence before it, and
to consider the impact that his psychological condition may have had on his
testimony. He further submits that a number of the Board’s negative
credibility findings were patently unreasonable. Finally, Mr. Chavarria
contends that the Board erred in following a case identified as a
jurisprudential guide in relation to the question of the availability of state
protection in Costa
Rica,
and erred further by applying the wrong test for state protection.
[3]
For
the reasons that follow, I am not persuaded that the Board erred in finding
that Mr. Chavarria’s story was not credible. Given that the Board did not
accept the underlying basis for Mr. Chavarria’s claim, the issue of state
protection need not be addressed.
Background
[4]
After
separating from his wife, Mr. Chavarria says that he became involved in a
relationship with a woman named Mauren. Mauren quickly became very jealous and
possessive, and would become hysterical if she thought that Mr. Chavarria was
with his wife, or when he went out without her.
[5]
Mr.
Chavarria realized that the relationship could not continue. When he told
Mauren that he wanted to end the relationship, he says that she threatened to
kill herself unless he reconsidered his decision. She also threatened to tell
her father, who was a former police delegate, that Mr. Chavarria had raped her.
[6]
According
to Mr. Chavarria, he was subsequently attacked by two police officers in the
presence of Mauren’s father, which led him to believe that she had orchestrated
the attack. Mr. Chavarria says that he was beaten unconscious, and had to seek
treatment at a clinic in San José.
[7]
Mr.
Chavarria then sought refuge at his uncle’s home. While living there, he says
that two uniformed members of the Rural Guard informed him that an arrest warrant
had been issued on the charge of rape. Mr. Chavarria says he escaped through
the back garden to a friend’s home. While hiding there, he learned that the
police were still seeking him.
[8]
Mr.
Chavarria testified that he then approached the Ombudsman’s office in order to
make a complaint. However, he was told that it would take between three and
four years before his complaint could be processed. As a consequence, he
decided not to file a complaint. Instead, he purported to reconcile with Mauren,
in order to allow him to plan his escape from Costa Rica.
[9]
Mr.
Chavarria left Costa Rica, arriving in Canada on April 24,
2003. He made his refugee claim shortly thereafter.
[10]
Mr.
Chavarria’s first refugee hearing took place in 2003, and resulted in the
rejection of his claim. That decision was set aside by order of Justice
O’Keefe, and a second refugee hearing was held in 2006. That decision, which
was also negative, is the decision underlying this application for judicial
review.
Standard of Review
[11]
The
dispositive issues on this application all relate to the Board’s appreciation
of the evidence, and its assessment of Mr. Chavarria’s credibility. As such,
the relevant findings are reviewable against the standard of patent
unreasonableness.
The Board’s Treatment of
Dr. Pilowsky’s Report
[12]
Mr.
Chavarria submits that while the Board accepted Dr. Pilowsky’s conclusion that
Mr. Chavarria suffered from chronic Post Traumatic Stress Disorder as well as
chronic major depression, the Board failed to appreciate the impact that these
conditions had on his testimony.
[13]
Specifically,
Mr. Chavarria points to references in Dr. Pilowsky’s report to matters such as
his forgetfulness, his inability to concentrate and his avoidance of
discussions regarding his past trauma, submitting that the Board should have
taken Dr. Pilowsky’s professional assessment into account, before concluding
that his testimony was vague, inconsistent and not straightforward.
[14]
There
are a number of reasons why I do not accept Mr. Chavarria’s submission. First
of all, the references in Dr. Pilowsky’s report to matters such as his alleged
forgetfulness, inability to concentrate and avoidance of discussions regarding
his past trauma are not observations made by Dr. Pilowsky, but are included in
a list of symptoms reported to Dr. Pilowsky by Mr. Chavarria.
[15]
Dr.
Pilowsky’s report, which was prepared in relation to Mr. Chavarria’s 2006
refugee hearing, makes no reference to any problems that he might have in
testifying at his upcoming hearing, nor does it suggest that his psychological
condition had any bearing on his ability to testify at his previous refugee
hearing.
[16]
Moreover,
the problems identified by the Board in its decision in relation to Mr.
Chavarria’s testimony did not arise from any inability to recall specific
events, or any confusion on his part. Nor was Mr. Chavarria unwilling to
discuss purportedly traumatic events. Rather, for the most part, the Board was
concerned by the material inconsistencies between Mr. Chavarria’s Personal
Information Form (or “PIF”), his testimony at his 2003 refugee hearing, and his
testimony at his 2006 refugee hearing.
[17]
Finally,
although Mr. Chavarria has filed a lengthy affidavit in support of his
application for judicial review, nowhere in the affidavit is there any suggestion
that his testimony before the Board was negatively affected in any way by his
psychological condition.
The Board’s Credibility
Findings
[18]
In
a lengthy and detailed decision, the Board identified numerous instances in
which Mr. Chavarria’s testimony was found not to be credible, explaining the
reasons for its conclusions in this regard.
[19]
I
agree with Mr. Chavarria that the Board did err in finding an inconsistency
between Mr. Chavarria’s testimony at his first and second refugee hearings in
relation to whether he had actually commenced divorce proceedings in Costa Rica at the time
that he testified at his first refugee hearing. A review of the transcript
from the 2003 hearing discloses that his evidence on this point has remained
consistent.
[20]
That
said, there were numerous, material differences between Mr. Chavarria’s
testimony at the two hearings. By way of example, at his first hearing, Mr.
Chavarria testified that he had actually met Mauren’s father, whereas at his
second hearing, he denied having met him, stating that he had only seen him
from a distance. The Board did not accept this evidence, observing that Mr.
Chavarria had testified at his first hearing that Mauren’s father had actually
spoken to him.
[21]
Similarly,
Mr. Chavarria’s story evolved over time in relation to matters such as whether
he had ever sought legal advice while he was still in Costa Rica, and whether
he had ever approached the Ombudsman’s office for help.
[22]
Having
reviewed the relevant portions of the transcripts of both hearings, as well as
the documentary evidence, I am satisfied that the Board’s conclusion that Mr.
Chavarria’s story was not credible was one that was readily available to it on
the record.
[23]
Having
found that it was not patently unreasonable for the Board to reject the
underlying basis for Mr. Chavarria’s claim, it is not necessary to address the
issue of state protection.
Conclusion
[24]
For
these reasons, the application for judicial review is dismissed.
Certification
[25]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for
judicial review is dismissed; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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