Date: 20080204
Docket: IMM-651-07
Citation: 2008 FC 144
Ottawa, Ontario, February 4, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
ROMEL
ABUTAN ARAGON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated January 22,
2007 concluding that the applicant was not a Convention refugee or a person in
need of protection.
I. Facts
[2]
The
applicant is a 36-year-old citizen of the Philippines who is claiming refugee
protection in Canada on the basis of a well-founded fear of persecution by
reason of membership in a particular social group; namely as a victim of
extortion.
[3]
The
applicant alleges in his Personal Information Form (PIF) that the persecution began
when he was involved in a motor vehicle accident in May 2005. The applicant
claims that after he accidentally hit a parked vehicle in a parking lot, he agreed
to compensate the owner of the car for any damage caused.
[4]
The
applicant claims that on June 12, 2005 the vehicle’s owner approached him
demanding further compensation for time lost at work owing to the accident. The
applicant agreed to pay the vehicle owner in order to “end my problem,” but
claims that this did not stop the individual from continuing to demand more and
more money from him. The applicant alleges that when he finally refused to pay more
money, the individual took out a gun and threatened the applicant’s life. He
applied for a Canadian visitor visa and obtained it on June 23, 2005.
[5]
On
August 15, 2005, the applicant arrived in Canada on his visitor’s
visa with the stated intent of visiting his brother, who is a Canadian citizen,
attending his nephew’s wedding, and traveling. The applicant’s visa was valid from
June 23, 2005 until December 22, 2005. When his visa expired, the applicant tried,
unsuccessfully, to get it renewed in order to, as stated in his original PIF,
“see how beautiful this country was.”
[6]
On
January 11, 2006, the applicant filed an application for refugee protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
II. Decision under
review
[7]
On
January 22, 2007, the Board determined that the applicant was not a Convention
refugee or a person in need of protection. The Board’s decision was based on
the applicant’s lack of credibility, as well as a finding that there did not
exist any subjective or objective basis to the applicant’s alleged fear of
persecution.
[8]
In
its decision, the Board made several negative credibility findings, many of
which were associated with discrepancies between the applicant’s original PIF
narrative, filed January 31, 2006, and his twice-amended narrative, dated July
25 and November 14, 2006. These discrepancies included that:
1.
the
applicant’s original PIF failed to mention that the individual whose car he hit
was a police officer;
2.
the
applicant’s original PIF stated that the individual approached the applicant
for more money one week after the accident, while the amended PIF listed a date
approximately three weeks following the accident;
3.
the
applicant’s original PIF did not mention the allegation that, in July 2005, the
police officer telephoned the applicant on numerous occasions demanding more
money; and
4.
the
applicant’s original PIF failed to mention that he reported the alleged threats
to his life to the police, while the amended PIF listed many details about the applicant’s
reporting of the threats.
[9]
The
Board held that the discrepancies between the original PIF narrative and the
amended versions were a result of the applicant’s attempt to bolster his
refugee claim and, accordingly, undermined the credibility of his claim.
[10]
The
Board also found that the applicant’s evidence was not clear and convincing so
as to “rebut the presumption that the state had the ability to protect him”
from the alleged agent of persecution. Further, the Board found that the
applicant’s subjective fear was undermined by his lack of credibility, as well
as by the fact that he did not leave the Philippines for Canada immediately
upon the issuance of his Canadian visitor’s visa on June 23, 2005.
III. Issues
[11]
The
applicant raises four issues in this application, all of which relate to the
overarching issue of whether the Board erred in concluding that the applicant
was not a Convention refugee or a person in need of protection. Those issues
are whether:
1.
the
Board erred in assessing the applicant’s credibility;
2.
the
Board erred in finding that the applicant’s delay in leaving the Philippines and claiming
refugee status upon arriving in Canada belied a well-founded
fear of persecution and indicated the absence of a subjective fear of
persecution;
3.
the
Board erred in finding that the applicant failed to rebut the presumption of
state protection; and
4.
the
Board breached the rules of natural justice in failing to provide a complete
transcript of the refugee hearing proceedings.
IV. Standard of review
[12]
In
Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 (F.C.A.), the Federal Court of Appeal
confirmed that the Board’s factual findings, including its credibility
determinations, will only be set aside if found to be patently unreasonable. As
Mr. Justice Décary stated at paragraph 4:
4 There is no longer any doubt that the Refugee
Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review. …
Accordingly, the first and second issues will
be reviewed on a standard of patent unreasonableness, meaning that the Board’s
findings will only be set aside if they are “clearly irrational” or “evidently
not in accordance with reason”: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R.
247.
[13]
With
respect to the third issue regarding state protection, it is clear that the
Board’s findings of fact, including its finding of whether state protection is
available, are entitled to great deference and will only be set aside if
patently unreasonable: Quijano v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1706, [2005] F.C.J. No. 2110 (QL). However, once
those findings have been made, they must be assessed against the test set out
in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, which is a
question of mixed fact and law and is, accordingly, entitled to less deference
by the reviewing court: Rey Nunez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1661, 51 Imm. L.R. (3d) 291. Accordingly, such a
decision will be reviewed on a standard of reasonableness simpliciter
and will only be set aside if there is no line of analysis within the given
reasons that can support the Board’s conclusion: Chaves v. Canada (Minister
of Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58.
[14]
Finally,
where a reviewing court is considering whether the Board observed the
principles of natural justice or procedural fairness, the standard of review is
correctness. Accordingly, if the Board’s failure to provide a complete transcript
of the refugee hearing amounted to a breach of natural justice, then no
deference is due and the decision will be set aside: Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392.
V. Analysis
1. Did
the Board err in assessing the applicant’s credibility?
[15]
The
applicant argues that three of the Board’s credibility findings were flawed.
Specifically, the applicant states that the Board erred:
1.
in
impugning his credibility on the basis that he amended his PIF narrative to
include that the vehicle owner was a police officer and that, accordingly, he
was being extorted by an agent of the state;
2.
in
impugning his credibility on the basis that he amended his PIF narrative to
alter the timing of the third encounter with the police officer; and
3.
in
impugning his credibility on the basis that he amended his PIF narrative to
include that he had received phone calls from the owner of the vehicle and that
he reported the incident to police.
[16]
In
relation to the first credibility finding, the applicant states that the
amendment was made solely for the purpose of clarifying who the owner was, and
conformed with evidence that was already on record before the Board; namely the
Schedule 1 Background Information form the applicant signed on January 10, 2006
just prior to claiming refugee protection. In that document, the applicant cited
a fear in returning to the Philippines on account of a “Threat
for my life,” and went on to state that the individual he fears is “a police
officer” who was “extorting money and threatening my life arising from a
vehicular accident.”
[17]
In
relation to the second credibility finding, the applicant states that the Board
appears to be impugning the applicant’s credibility simply on the basis of the
amendment, without any other justifiable reason. According to the applicant,
such a finding is in error since it contradicts subsection 6(4) of the Refugee
Protection Division Rules, S.O.R./2002-228 (the RPD Rules), which permits
the changing of any information in a refugee claimant’s PIF.
[18]
Finally,
in relation to the third credibility finding, the applicant states that the
addition was made because he was confused about what facts needed to be
outlined within the PIF.
[19]
Upon
reviewing the record and the amendments made to the applicant’s PIF narrative,
I must conclude that the above-noted credibility findings were open to the
Board to make, and will not be set aside as patently unreasonable. First, while
subsection 6(4) of the RPD Rules allows for the amendment of an individual’s personal
information, I agree with the respondent that the simple ability to amend a PIF
narrative is not responsive to the credibility concerns that may arise from
such an amendment. Not all amendments can justify a negative credibility
assessment: Akhtar v. Canada (Minister of Citizenship and Immigration),
2002 FCT 560, [2002] F.C.J. No. 730 (QL); Ameir v. Canada (Minister of
Citizenship and Immigration), 2005 FC 876, 47 Imm. L.R. (3d) 169.
[20]
In
the case at bar, the applicant made substantial additions to his narrative;
additions that clearly buttressed his claim for refugee protection. I cannot
accept as true the applicant’s assertion that he was unaware of what
information should be included in his PIF narrative. The requirements addressing
what must be included in a narrative are clearly outlined at Question 31 of the
PIF. These requirements state that the refugee claimant must outline all of the
material facts relating to their claim, including:
1.
all
significant events and reasons that have led the claimant to claim refugee
protection in Canada;
2.
the
details of any steps taken to obtain protection from authorities in their
country of origin and the result; and
3.
any
steps taken to find refuge by going to another part of their country of origin.
[21]
The
applicant’s failure to disclose in his original PIF that he “immediately”
reported the firearms threat to the police was a significant omission that justified
the Board’s negative credibility finding. The same reasoning applies to the
applicant’s initial failure to account for the July 2005 telephone calls he
allegedly received from the vehicle owner. Both omissions involve significant
and important aspects of the applicant’s refugee claim that should have been
included in the original PIF. These omissions do not address minute details of
the claim that the applicant was merely clarifying through amendment. Rather,
they go directly to the heart of the applicant’s claim.
[22]
Accordingly,
the Board’s finding that such omissions impacted negatively on the applicant’s
credibility was within its power to make, and will not be set aside by this
Court as a patently unreasonable error: Kutuk v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1754 (QL).
2. Did
the Board err in finding that the applicant’s delay in leaving the Philippines and claiming
refugee status upon arriving in Canada belied a
well-founded fear of persecution and indicated the absence of a subjective fear
of persecution?
[23]
The
applicant outlines that the reason for his delay in claiming refugee protection
was that he did not know about the refugee process in Canada and only
came to know about the process when informed of it by his brother’s friend.
[24]
Accordingly,
the applicant submits that the Board erred in failing to provide any reasons why
it rejected the applicant’s explanation for his delay in claiming refugee
protection upon his arrival in Canada. In support of this argument, the
applicant points to Tariq v. Canada (Minister of
Citizenship and Immigration), 2005 FC 404, 44 Imm. L.R. (3d) 256, where
Madam Justice Mactavish stated at paragraph 14:
14 It is true that delay
in claiming refugee protection can significantly call into question the bona
fides of a refugee claimant’s subjective fear of persecution… That said,
where, as here, claimants offer an explanation as to why they did not make
their claims any sooner, it is incumbent on the Board to consider that
explanation, and to decide whether it provides a reasonable justification for
the delay, or whether it is indicative of a lack of subjective fear.
[25]
Further,
the applicant states that his delay in leaving and claiming refugee protection
is not in itself determinative in establishing that he lacks a subjective fear.
In support, the applicant cites Madam Justice Dawson’s decision in Juan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 809, [2006] F.C.J. No. 1022 (QL),
where she states at paragraph 11:
11 It is well settled
law that a delay in seeking refugee status may be a relevant factor when
assessing a claimant’s credibility. However, delay in claiming protection
cannot, in and of itself, justify the rejection of a claim to Refugee status or
to protection. It follows that the Board’s finding with respect to delay is, by
itself, an insufficient basis for maintaining its denial of the claim.
However, it was decided by the Federal
Court of Appeal in Huerta v. Canada (Minister of Employment and Immigration)
(1993), 157 N.R. 225 (F.C.A.), that while the delay in making a refugee claim
is not a decisive factor in itself, it is “a relevant element which the
tribunal may take into account in assessing both the statements and the actions
of the claimant.”
[26]
It
is clear from the Board’s decision that the applicant’s argument in this regard
must fail. I agree with the respondent that the Board clearly considered the
applicant’s explanation at page 5 of its decision, outlining first the
applicant’s reasons for his delay, and then providing its own reasons why it
considered that explanation unpersuasive. As the Board stated:
The claimant had a Canadian visitor’s
visa (CVV) as of June 23, 2005, but did not leave his country until August 2005
because he had no plan of hiding in Canada,
and did not know about refugee claims. Once he was here, he learnt of the
refugee system only after his brother’s friend told him about it. Moreover, he
first wanted to see what life here would be like, and agreed he was weighing
his options before claiming.
Either there was a threat to his life
when the claimant was in the Philippines, or there was not. If,
indeed, the events occurred as alleged, then the danger was the same when he
was in his country, and also when he was in Canada. The panel finds not leaving at first
opportunity, and first considering what life in Canada would be like before
making a claim, belie a well-founded fear of persecution or need for
protection, and indicate an absence of subjective fear.
[27]
It
is clear from this statement that after weighing the applicant’s explanation
for his delay in leaving the Philippines and claiming refugee protection in Canada, the Board
ultimately concluded that his explanation was insufficient to satisfy the Board
that he possessed a subjective fear of persecution. As the respondent suggests,
the applicant’s stated reasons were more consistent with a wish to immigrate,
rather than a desire to flee persecution.
[28]
Further,
in response to the suggestion that delay itself is not enough to justify
rejecting the applicant’s claim, it is clear from the Board’s decision that its
finding regarding the applicant’s delay was not the sole reason for rejecting his
claim, but rather, merely acted in combination with the Board’s other
credibility findings to further undermine the applicant’s credibility and
justify its decision that the applicant did not, in fact, possess a
well-founded fear of persecution. When taken together, these considerations
provide clear and concise justification for the Board’s ultimate conclusion.
3. Did
the Board err in finding that the applicant failed to rebut the presumption of
state protection?
[29]
The
applicant argues that there was “clear and convincing” documentary evidence
before the Board addressing the issue of state protection in general, and why
it was objectively reasonable for the applicant to not seek further state
protection. The applicant further contends that the Board failed to consider
this evidence in reaching its decision, and that that failure amounts to a
reviewable error.
[30]
The
Respondent submits the Philippines is a functioning
democratic state, even though it has problems as other democratic countries
have: Canada (Minister of Employment and Immigration) v. Villafranca (1992),
150 N.R. 232 (F.C.A.); Kadenko v. Canada (Solicitor
General)
(1996), 143 D.L.R. (4th) 532 (F.C.A.); and Quijano, above.
[31]
It
is clear from a review of the decision that the Board did, in fact, consider
objective documentary evidence concerning the state’s human rights practices
and ability to protect its citizens. That evidence was the 2005 U.S. Department
of State Country Report on the Philippines’ human rights
practices, which states that while the perception of corruption in the public
service is high, there is no information suggesting that the government is totally
unable to provide adequate protection to individuals such as the applicant.
Further, the Report makes clear that throughout 2005 there were significant
efforts underway to reform the Philippine National Police (PNP), and that
during this time nearly 200 PNP officers were dismissed for objectionable
conduct. This evidence provides more than a reasonable basis for the Board’s
conclusion that the applicant should have proceeded with his efforts to obtain
state protection in the Philippines prior to filing for
refugee protection in Canada.
[32]
It
must also be noted that the Board’s finding of adequate state protection must
also be read in light of its negative credibility findings. Essentially, while
the applicant stated in his amended PIF narrative that he “immediately”
reported the firearms incident to the PNP, this evidence was found to be not credible
by the Board, thereby suggesting that its consideration of adequate state
protection was not even necessary to the proper disposition of the applicant’s
refugee claim. This was admitted by the applicant, in his Further Memorandum of
Argument, as he stated that the “determinative issue” of the Board’s decision
was the applicant’s credibility. Accordingly, Court intervention into the
Board’s finding on this issue is not warranted.
4. Did
the Board breach the rules of natural justice in failing to provide a complete
transcript of the refugee hearing proceedings?
[33]
In
his Further Memorandum of Argument, the applicant argues that the Certified
Tribunal Record is incomplete and, as a result, the Board breached the rules of
natural justice thereby entitling the applicant to a new hearing. The applicant
submits that a recording malfunction caused much of his direct testimony to be
missing from the transcript, including: what had occurred after he had gone to
the police; his reasons for the omissions in his PIF narrative; his explanation
regarding the delay in filing for refugee protection in Canada; and his
testimony regarding the availability of state protection in the Philippines.
[34]
The
applicant submits that even though the Board and counsel took steps to supplement
the record by reading from their hearing notes, this is insufficient to offset
the breach of natural justice that occurred.
[35]
In
Benavides v. Canada (Minister of
Citizenship and Immigration), 2006 FC 323, 289 F.T.R. 104, Mr. Justice
O’Keefe effectively outlined the law regarding when the absence of a transcript
violates the rules of natural justice, stating at paragraphs 29-30:
29 In Canadian Union
of Public Employees, Local 301 v. Montreal (City of), [[1997] 1
S.C.R. 793], Justice L’Heureux Dubé set
out at paragraph 81, the test for whether the absence of a transcript violates
the rules of natural justice:
In
the absence of a statutory right to a recording, courts must determine whether
the record before it allows it to properly dispose of the application for
appeal or review. If so, the absence of a transcript will not violate the rules
of natural justice. Where the statute does mandate a recording, however,
natural justice may require a transcript. As such a recording need not be
perfect to ensure the fairness of the proceedings, defects or gaps in the
transcript must be shown to raise a “serious possibility” of the denial of a
ground of appeal or review before a new hearing will be ordered. These
principles ensure the fairness of the administrative decision-making process
while recognizing the need for flexibility in applying these concepts in the
administrative context.
30 In
Goodman v. Canada (Minister
of Citizenship and Immigration) (2000),
185 F.T.R. 102 (T.D.), Justice Lemieux
stated at paragraph 75:
In
my view, in this case, the following factors should be considered in
determining whether the transcript hearing gap in the CRDD proceedings amounts
to a serious possibility that Mr. Goodman will be denied a ground for review:
(1)
the grounds for review advanced;
(2) the importance of the
impugned findings to Mr. Goodman’s refugee claim;
(3) the basis upon which
the CRDD arrived at its conclusions or findings and by this I mean did the CRDD
base its conclusions on findings of incredibility, or findings of fact or as a
matter of legal interpretation;
(4) what was the subject
matter of the transcript gaps … and the significance of the transcript gap to
the impugned findings, that is, how material was the subject matter or content
of the transcript gap and what reliance did the tribunal place on it;
(5) what other means
did the tribunal use to fill the gap; and
(6) what other means
were available to the Court to determine what went on at the hearing.
If a significant point of the transcript is
unavailable, a new hearing will be ordered: Richard v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 967, [2002] F.C.J. No. 1262 (QL); Agbon
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 356, [2004] F.C.J. No. 407 (QL); Benavides,
above; and Ortiz v. Canada (Minister of
Citizenship and Immigration), 2005 FC 346, [2005] F.C.J. No. 442 (QL).
[36]
In
the case at bar, the applicant alleges that because the Board’s decision was
based on its negative credibility findings regarding the applicant’s original
and amended PIF narratives, then the applicant’s direct testimony regarding the
omissions is necessary in order for this Court to be able to conduct a
meaningful judicial review.
[37]
With
respect, I cannot accept the applicant’s argument. While the applicant cites
many cases in support of his position that a meaningful judicial review cannot
occur in the absence of a transcript of the applicant’s complete direct
testimony, most of the cases cited dealt with situations where there did not
exist any transcript of the proceedings due to some form of technical or human
error. That is not the case hear, where the transcript is comprised of the
applicant’s initial direct testimony and, once an error in recording occurred,
an overview of the applicant’s remaining testimony as provided by a recitation
of the written notes of the Board member and the applicant’s counsel.
[38]
It
is clear from the record that this error was caught while the hearing was in
process, and that the parties took steps to supplement the existing record so
as to satisfy the requirements of natural justice. Further, at no point during
the hearing did the applicant’s counsel object to the steps taken by the Board
to remedy the error and, presumably from the record, agreed to the steps taken
at the time. On this issue, the applicant is fluent in English, and represented
here by Counsel without objection, an implied waiver is in effect: In re
the jurisdiction of a Human Rights Tribunal to continue its inquiry and in re a
complaint of Local 916 of the Energy and Chemical Workers' Union dated April
27, 1979, filed pursuant to section 11 of the Canadian Human Rights Act (S.C.
1976-77, c. 33 as amended) against Atomic Energy of Canada Limited, [1986]
1 F.C. 103 (C.A.); Yassine v. Canada (Minister of Employment and Immigration)
(1994), 172 N.R. 308 (F.C.A.).
[39]
The
question before this Court is whether the Board’s steps in supplementing the
transcript were sufficient to allow for a meaningful judicial review of the
Board’s decision. Having reviewed the record and the arguments of the parties,
there was no perception of a breach of natural justice at the time of the
hearing and, accordingly, no breach of natural justice that warrants the
intervention of this Court.
[40]
Accordingly,
this application for judicial review must be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application be dismissed. No question is certified.
"Orville
Frenette"
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