Docket: IMM-2195-11
Citation: 2011 FC 1475
Ottawa, Ontario, December 14,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ALBERTO MARIO VANEGAS BELTRAN
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Applicant
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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]
This
decision arises from an application for judicial review of a February 28, 2011
decision by the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board) that found the applicant was neither a Convention (United
Nations’ Convention Relating to the Status of Refugees, [1969] Can
TS No 6) refugee nor a person in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA).
For the reasons that follow, the application is granted.
[2]
The
Board refused the claim, finding, as the determinative issues, that the applicant’s
testimony was implausible and that the applicant lacked credibility. By way of
summary, I find that the plausibility findings were unsustainable in the case
of record before the Board and amounted to speculation. Secondly, the approach
adopted by the Board to the assessment of its evidence, and on which it
predicated its conclusions as to credibility, was flawed.
[3]
The
Board’s assessment of the credibility of the applicant was in large measure,
based on a one day discrepancy between the date he reported the events underlying
his claim to the police and his viva voce testimony on the same issue.
[4]
This
discrepancy was not material to the chain of events. Nothing turned on it, and,
to the extent that there may have been a discrepancy, the fact that, under
questioning, the applicant held to his memory as to the date he went to the
police, as opposed to the date the police report was processed, is, in these
circumstances, equally consistent with a finding of credibility and honesty.
[5]
An
explanation was also provided which would have explained the discrepancy, but
it was not addressed by the Board. Nonetheless, based on this discrepancy the
Board concluded that the applicant had changed his testimony and was not to be
believed. It proceeded to discount much of the evidence that followed
thereafter, including the reports by the Ombudsman and office of the Attorney General
which corroborated his testimony.
[6]
Finders
of fact must approach all evidence in the same dispassionate and objective
manner. Evidence of a seamless web of diverse events occurring over time and
distance, all intersecting propitiously and recalled with clarity and
precision, should be viewed with the same caution as testimony which, by reason
of multiple inconsistencies on critical issues, does not hold. In sum, the
finding of credibility reached in this case based on an immaterial discrepancy,
for which a credible explanation was tendered, cannot stand the test of
reasonableness.
[7]
With
respect to the plausibility findings, this case is an application of the
principle expressed in Divsalar v Canada (Minister of Citizenship and
Immigration), 2002 FCT 653 where Mr. Justice Edmond Blanchard held that
“there is… authority that would see a Court intervene and set aside a
plausibility finding where the reasons that are stated are not supported by the
evidence before the panel.” More recently, as noted by Justice James O’Reilly
in Cao v Canada (Citizenship and Immigration), 2007 FC 819
at a para 7, the Court is often equally well situated as the Board in deciding
whether a particular event or scenario or series of events might have occurred.
[8]
Here,
the Board speculated that a reasonable extortionist would have specified the
sum of money demanded together with the means of payment, in the first phone
call. The Board also found as implausible that the extortionists would make a
call warning the applicant that he would be killed for having reported the
threats to the police. This presumes much as to the modus operandi of
the extortionist. The characterization of the events as described as
implausible does not withstand the test of reasonableness.
[9]
The
application is granted.
[10]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board for reconsideration
before a different member of the Board’s Refugee Protection Division. No
question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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