Date: 20080219
Docket: IMM-3133-07
Citation: 2008 FC 213
Ottawa, Ontario, February 19, 2008
Present:
The Honourable Mr. Justice Simon Noël
BETWEEN:
RITA ELISABETH AYALA AYALA,
TANIA ALEXANDRA PERDOMO AND
TAMARA ADRIANNA PERDOMO
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division (RPD) dated July 13, 2007, concluding that Rita Elisabeth Ayala Ayala
(the principal applicant) is not a “Convention refugee” or a “person in need of
protection”. The refugee claim of the applicants Tania Alexandra Perdomo and
Tamara Adrianna Perdomo, the applicant’s daughters, who were born in Virginia,
in the United States on February 12 and 13, 2006, was also rejected. The
principal applicant told the RPD that her daughters were not alleging any risk
of return to the United States and did not fear persecution there. The father
of the children also applied for asylum but in another file.
I. Issue
[2]
Did the
RPD err in fact or in law by determining that the applicant lacked credibility?
[3]
The Court
notes that the RPD decision contains no reviewable error; accordingly, the
application for judicial review will not be allowed.
III Facts
[4]
A Salvadorean
citizen, the principal applicant claims that she has a well-founded fear of
persecution at the hands of her former boyfriend, Pedro Alvarado, a leader of
the Maras. He allegedly attacked her and fired shots at her house when she left
him, and she filed a complaint about him with the police.
[5]
According
to her written narrative, she left El Salvador on June 14, 2005, transited via
a number of Central American countries where she met the man who would become
the father of her two daughters. The couple lived in the United States for
seven months before arriving by truck in Lacolle, Canada, on September 1, 2006;
she claimed refugee protection at the border.
IV. Decision under review
[6]
After
considering the Chairperson of the Immigration and
Refugee Board’s Guideline 4 entitled Women Refugee Claimants Fearing
Gender-Related Persecution, the RPD found that the conditions for
granting refugee status to the principal applicant were not met. This finding
was based on multiple contradictions and implausibilities regarding significant
aspects of the principal applicant’s narrative, which damaged her credibility.
[7]
For
example, the RPD noted that in paragraph 7 of her narrative, in answer to
question 31 of her Personal Information Form (PIF), the applicant wrote the
following:
[translation]
Towards the end of April 2005, when we
were at his parents’ home, I noticed tattoos on his forearm and shoulders for
the first time.
However, when she testified, she persisted in saying that
the incident at the home of her ex-boyfriend’s parents occurred in May 2004.
She later testified that he was a member of two gangs, the MS and the Mara 18
and that he was the leader of the latter group. However, the modus operandi
of both these gangs was to kill each other. It would therefore be implausible
that he could be a member of both gangs.
[8]
Regarding
the allegation that her ex-boyfriend fired shots at her house, the applicant
gave three different versions of what she had written in her narrative. When
the RPD asked her which of the three versions was the truth, the transcript
reveals the following:
[translation]
BY THE MEMBER (addressing the claimant)
Q. Madam, we have three different
versions. Now, can you tell us which one is true?
A. I am telling you the truth, I
am a bit confused, but before God, I am telling you the truth.
Q. You were sworn, it isn’t
necessary to repeat “before God”, you were sworn. Then . . . then, were you
inside the house, outside the house or had you not yet arrived at the house?
A. I was almost at the house.
. . .
Q. Why did you say something
different a few minutes ago?
A. But it’s pretty much the same
thing, you just have to use a little logic and it amounts to the same thing.
[9]
The RPD
determined that in this particular case, the applicant’s allegations were
completely implausible and contradicted the documentary evidence.
V. Analysis
[10]
After
reviewing the entire record, it should be noted that the facts as stated by the
applicant were sometimes completely out of chronological order. Moreover, the
contradictions and inconsistencies in the narrative together with the omissions
in her Personal Information Form leave the reader perplexed.
[11]
Faced with
such contradictions and inconsistencies, the RPD member who presided at the
hearing asked the applicant several times to take her time before answering the
questions. The questions were repeated and rephrased to ensure that they were
clear and understandable. The applicant had an interpreter and was also
represented by counsel. In spite of these efforts to ensure that the applicant
had understood the questions and the contradictions or inconsistencies between
her answers and her narrative, the RPD could only conclude that the applicant
lacked credibility.
[12]
It is
settled law that a tribunal such as the RPD is in a better position than the
Court to observe the actions of a witness and to analyze his or her demeanour.
The Court should not interfere or substitute its opinion for that of the RPD
(see Rosta v. Thiel, [1986] N.S.J. No. 555 at paragraphs 18, 19 and
20). In this case, the facts are indisputable; the decision under review is not
patently unreasonable.
[13]
The
parties were invited to submit questions for certification, but they did not do
so.
JUDGMENT
THE COURT ORDERS AS FOLLOWS:
- The application for
judicial review is dismissed;
- There is no question to be
certified.
“Simon
Noël”
Certified true translation
Mary Jo Egan, LLB
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