Docket: IMM-3173-13
Citation:
2014 FC 871
Ottawa, Ontario, September 12, 2014
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
RICARDO BELTRAN GARCIA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the April 9, 2013 decision of a member of the Refugee Protection Division [RPD]
of the Immigration and Refugee Board of Canada [Member] finding that the
Applicant is not a Convention refugee or person in need of protection pursuant
to sections 96 and 97, respectively, of the Immigration and Refugee
Protection Act, SC 2001, c 27.
[2]
The Applicant is a former police officer and a
citizen of El Salvador. He claims that he is at risk from a high ranking
police officer, and corrupt police officers and gangs associated with that
officer, because he refused to participate in corruption.
[3]
The Member dismissed the Applicant’s motion to
have the Member recuse himself on the basis of reasonable apprehension of bias.
He also rejected the Applicant’s claim on the basis of credibility and
consequently found that there was insufficient evidence to establish that the
Applicant would be subject to a serious possibility of persecution on a Convention
ground, or that he would personally be subjected on a balance of probabilities
to a danger of torture, risk to life, or risk of cruel and unusual treatment or
punishment if the Applicant were to return to El Salvador. The Member found
that the Applicant made major changes to his Personal Information Form [PIF]
narrative when he filed an amended narrative and did not provide a reasonable
explanation for omissions from the original.
[4]
The Applicant does not challenge the dismissal
of the motion for recusal but submits that the Member erred in fact and in law
by finding that the Applicant did not provide any explanation for the omissions
from his original PIF narrative and by failing to consider the evidence of a
witness, whom the Member himself summoned, which supported the Applicant’s
explanation for the omissions.
[5]
The Respondent interprets the Applicant’s claims
as allegations of bias. It further submits that the factual basis upon which
the Applicant claims bias and challenges the reasonableness of the Member’s
decision is contradicted by the Certified Tribunal Record [CTR].
[6]
In this matter, when considering the issues
raised by the parties, it was necessary to carefully review the decision, the
procedural history of the matter and the CTR, in particular the hearing
transcripts.
[7]
Having done so, it is my view that the
Applicant’s submission that the Member erred by finding that the Applicant did
not provide any explanation for the omissions from his original PIF narrative,
when in fact he did provide an explanation, cannot succeed. It is clear from
the decision that the Member acknowledged that explanations had been given, but
did not accept those explanations. The Member repeatedly stated “I reject this explanation” and “The
claimant provided no reasonable explanation for this omission”
(paragraphs 31, 36, 38 and 45).
[8]
The Respondent’s submission that the Applicant’s
claim is one of bias can also be quickly dispensed with. The Applicant did
not, in either his written or oral submissions, allege bias. His submissions
were, undoubtedly, strongly worded and perhaps intemperate in so far as it was
submitted that the Member misstated the evidence and ignored testimony and submissions
“in order to find” that the Applicant provided no
explanation for the difference between the original and amended PIF narratives.
However, the issues raised and argued did not pertain to bias.
[9]
In that regard, the issue as to whether the Member
erred by failing to consider the evidence of the witness that the Member summoned
is a valid one and is addressed below.
Background
[10]
It is not in dispute that the Applicant’s
amended PIF narrative made major additions to his original PIF narrative. The
Applicant entered Canada on March 30, 2009 and filed his Claim for Refugee
Protection on the same day. His original PIF is dated April 24, 2009. The
narrative is less than two pages in length and is comprised of fourteen
unnumbered paragraphs. It was prepared with the assistance of the FCJ Refugee
Centre. His amended narrative is dated June 15, 2011; it is eight pages in
length and has fifty nine numbered paragraphs. The Member focused his decision
almost exclusively on omissions from the original PIF narrative, including that
the Applicant was kidnapped by the Los Zetas in Mexico and used as a forced
labourer while making his way to Canada; that his persecution was as a result
of his refusal to become involved in police corruption; and, that the police
had looked for the Applicant at the homes of his mother and sister after he had
fled. As noted above, the Member did not accept his explanations for those
omissions.
[11]
In his decision, the Member also states the
following:
[39] Furthermore, the claimant stated that
his original PIF had not been translated to him by Mr. Rico, the individual who
had signed the interpreter’s declaration. The panel summoned Mr. Rico as a
witness. The witness appeared at the November 9, 2012 sitting of the claim.
The panel asked the witness if the signature in the interpreter’s declaration
of the claimant’s original PIF was his and he replied that it was. The panel
then asked the witness if he had translated the original PIF to the claimant
and he replied that he had.
[40] The claimant’s counsel asked the
witness numerous questions. At no time was the credibility of the witness
challenged with respect to the question of whether he had actually translated
the original PIF to the claimant.
[12]
The hearing of this matter was conducted in five
sessions. On August 30, 2012 the second hearing session took place and, as the
matter was not concluded, a third session was scheduled. During that session,
which was held on September 14, 2012, the Member addressed the amended narrative.
When asked why paragraphs thirteen, fourteen and fifteen were not in his
original narrative, the Applicant responded:
CLAIMANT: Well the
person that helped me to fill out the personal information form focused on
general things and when I gave my open narrative they only put the points that
they considered to be most important.
MEMBER: Sir at the beginning of the hearing you
were affirmed that the original narrative had been read back to you. So if
noticed some important facts were missing why did you not mention to them when
it was read back to you?
CLAIMANT: I did mention it nevertheless they
focused around my sister’s death and the corruption among the police,
mentioning it as something general and not something with details.
(CTR p. 985)
[13]
The Member then engages in a paragraph by
paragraph comparison of the original PIF narrative and the amended narrative, asking
each time why the addition was not in the original:
MEMBER: […] Paragraph seventeen […].
[…]
MEMBER: Why is that not in your original
narrative sir?
CLAIMANT: I do not, I do not, I do not know
why it does appear really.
MEMBER: Well let us go to paragraph number
nineteen. […] Why is that not in your original narrative sir?
CLAIMANT: To tell you the truth I do not
understand when I exposed all my case. The story was done for me in that
manner and I thought that they [ph] were mentioning my sister’s death and the
corruption amidst the police, I thought they had written it like that because
that was what was essential, thinking that in the second one I could explain
with details every point.
MEMBER: Paragraph number twenty-four sir. […]
Why was that not in your original narrative?
CLAIMANT: I do not know in reality why that
does not appear.
(CTR pp 985-986)
[…]
MEMBER: All right let us go on to paragraph
twenty-seven and twenty eight sir. […]
[…]
MEMBER: Why is that not in your original
narrative sir?
CLAIMANT: I do not know in reality. I insist
that in the personal information form they focused around my sister’s death and
the corruption in the police.
(CTR p. 988)
[…]
MEMBER: Now paragraph number thirty-two sir.
[…] Why did you not mention that in your original narrative?
CLAIMANT: I do not know why it does not appear.
(CTR p. 990)
[14]
After a recess, Applicant’s counsel brought a
motion for bias and sought to have the Member recuse himself. She submitted
that the Member had shown a closed mind and that the hearing had been an
exercise in establishing that the Applicant was not credible rather than an
effort to understand his story and determine the truth. She gave an example
where the Member had asserted that there was contradictory oral evidence when
this was not the case and submitted that the Member’s approach served to break
down the Applicant who came to the RPD with a head injury. The Member rejected
the motion. He resumed asking, paragraph by paragraph, why various points were
not in the original PIF narrative and elicited several more “I do not know”
responses from the Applicant.
[15]
In response to a question from the Member as to
why the information about the police parking a car outside his mother’s house
was not in the original PIF narrative, the Applicant stated:
CLAIMANT: I do not know.
When they were filling up the personal
information form for me I did all the story and nevertheless the word, the
sentence that the person that filled up the personal information form for me told
me was that what I had to prove was the death of my sister and the corruption
in the police.
I had prepared my personal information form
prior to that in Spanish. I have many pages nevertheless the person who did
the favor to me to complete it he told me he had absorbed what I was interested
in proving before the government of Canada. So that I do not understand why it
is that many points that Mr. Judge is asking me about is my only explanation as
to the reason for which it does not appear in the original narrative.
MEMBER: And again sir, you did affirm that the
personal information form was translated back to you. You found out these
things were missing from the narrative sir, why did you not notice it at that
time?
CLAIMANT: I did notice it because I had my
personal information form in writing and nevertheless the person that has
experience in this told me took like what he thought to be important which was
my sister’s death and the corruption in the police and he omitted this. And I
not knowing the system recently arrived to Canada trusted the way the person
who was with me appreciated things, deducing that he with his experience and
the amount of years he had been here, knew how, how, what he really had to take
for my case.
(CTR p. 1000)
[16]
The Member asked who the person was that had
helped him prepare the original PIF narrative. The Applicant replied that it
was in a community centre. The Member then asked if it was Mr. Giovanni Rico
and:
MEMBER: So if I were to call him as a witness
he would confirm that fact that you gave him a lot more information than what
he put down in your original personal information form?
CLAIMANT: I would not be able to know what
answer he would give to Mr. Judge.
(CTR p. 1001)
[17]
The Member then moved on to paragraphs fifty-two,
fifty-three and fifty-four of the amended narrative, asking why the Applicant
did not include in his original PIF narrative that he was kidnapped by the Los
Zetas as he was travelling through Mexico and held as a forced labourer. The
Member again elicited an “I do not know” response.
[18]
At this point the Applicant asked if he could
make a comment and again tried to explain that he filled out the original PIF narrative
in the way he had been advised to:
CLAIMANT: When I, I am going to insist on
something. I developed all my narrative based on my experience since being in
the police until arriving here with no omission of anything. But the people
who make the favour of helping me clarified to me that I had to prove the
danger I was in in [sic] the country I was coming from and when Mr. Judge asks
me why it is that it does not appear in the original narrative for all the
questions he asks me about the original narrative my answer would me that I
think that the person at that moment did not consider these points to be
important. […]
[…]
I do not have any more to say to Mr. Judge
except the fact that the original narrative that is my explanation of why they
would not have taken all those points if those were important points.
(CTR p. 1001-1002)
[19]
The Member then asked the name of the community centre
and the individual that assisted the Applicant. After some confusion, it was
established that while it was Mr. Giovanni Rico who had signed the
interpreter’s declaration in the original PIF narrative, there were in fact two
Mr. Ricos at the centre, a father and son. The Applicant testified that he did
not believe that it was Mr. Rico’s son who had helped him complete the PIF
narrative:
MEMBER: Sir you explained that why all of these
omissions from the original narrative were because you trusted the person that
helped you with the personal information form because he was more experienced
than you in these matters: is that correct?
CLAIMANT: Correct
MEMBER: Was that Mr. Rico sir that you trusted?
CLAIMANT: That is where I went to get help but
the person who helped me complete the personal information form I do not
believe it was him. But it was in that place where they made me the favor to
help me.
(CTR p. 1003)
[20]
The Applicant went on to try to explain that it
was not Mr. Rico who directly translated the PIF narrative for him but another
person who worked there. The Member responded:
MEMBER: But sir, again we are dealing with the
translation of the document. According to the declaration in your original
personal information form it was Mr. Giovanni Rico who translated the personal
information form to you from English to Spanish. Is that correct or not sir?
CLAIMANT: He did it for me from Spanish to
English.
MEMBER: Well no, it was from English to Spanish
because you speak Spanish sir.
CLAIMANT: The thing is that one takes there the
development of the narrative …
MEMBER: Okay sir, excuse me, I have to stop you
here.
All right, there is a declaration in your
original narrative and if you do not know the answer to this question please
say so. The declaration says that Giovanni Rico translated the personal
information form from English to Spanish to you. I want to know if that is
true or not; whether the document was translated to you by Mr. Rico, Giovanni
Rico from English to Spanish.
CLAIMANT: The answer is no.
BOARD MEMBER: Okay sir I am going to call Mr.
Rico as a witness to determine whether your allegations are correct or not.
CLAIMANT: Okay
(CTR p. 1004)
[21]
The Member adjourned until November 9, 2012. He
issued a summons on November 2, 2012 stating that Mr. Rico was “to give evidence relevant to the claim, specifically to the
translation of the Personal Information Form” (CTR p. 217).
[22]
On November 9, 2012 the next hearing session was
commenced. At that time the Member confirmed that he had received the medical
documents dated November 6, 2012. These documents confirmed the Applicant’s
workplace injury and persistent headache. Counsel for the Applicant again
moved that the Member recuse himself for bias arguing that the Member had
descended into the arena. The Member dismissed the motion.
[23]
In the course of that discussion the Member
addressed the reason why he had summoned Mr. Rico, a process that counsel for
the Applicant submits was extraordinary:
MEMBER: The reason why I summoned the witness
was because at the last hearing the claimant testified in his oral testimony
that the person who had signed the interpreter’s declaration in the personal
information form, a Mr. Giovanni Rico, was not the person who had actually
translated the personal information form to him. Therefore I wanted to settle
that issue as to whether Mr. Rico had actually translated the personal
information form to the claimant or not.
[24]
The Member asked the witness where he was
employed, being the FCJ Refugee Centre, FCJ standing for the Faithful
Companions of Jesus, and what his role was there, which was currently as the
Advocacy and Volunteer Coordinator. He then swore in the witness and asked him
three questions:
MEMBER: So again I have C-1 which is the
personal information form the claimant in this matter and it has an
interpreter’s declaration on it.
Counsel do you … okay.
Now is this your signature here sir?
WITNESS: Yes it is.
MEMBER: And is this your name on top here sir.
WITNESS: Yes it is.
MEMBER: According to this declaration here it
says that you have accurately interpreted the entire contents of this form to …
from the English language to the Spanish. Did you do that with this claimant
sir?
WITNESS: Yes I did.
MEMBER: Thank you I have no more questions.
Counsel?
(CTR p. 1015)
[25]
Counsel for the Applicant then questioned the
witness. Mr. Rico explained that the FCJ Refugee Centre is a non-governmental
organization that helps settle and protect refugee and non-status people in Canada. He started volunteering at the centre when he was very young, around ten years old,
and that he was now thirty years old. In 2009 he was a volunteer community
legal worker and helped clients fill out forms, informed them of the process,
and guided them through the system. When the advocacy and volunteer
coordinator position was funded, he applied for it and was appointed. He had
on the job training on how to fill out legal forms and, although he held a B.A.
from York University, he had no formal qualifications in law or translation.
[26]
As to the completion of personal information
forms:
COUNSEL: And in 2009 when this personal
information form was being prepared were you the only person who helped people
with personal information forms?
WITNESS: No a lot of our work is done through
volunteer so I am the one that signs off on the forms because I am the one that
after everything is done interprets it back to the client. But a lot, because
we used to see a lot of cases we had volunteers who would translate the
documents for the client; I would just oversee the final product to make sure
that the client understood everything that was in the form.
MEMBER: So I am sorry; I am a little bit
confused. So were there other people who also helped?
WITNESS: We have, we work through volunteers,
so there is a high demand, so I just make sure that the final product if I do
not work directly with the client, is… is what the client understands and make
sure that everything that is in it is what the client has said.
COUNSEL: When you said that volunteers helped
translate documents, what documents would they translate?
WITNESS: They would translate the narrative.
At that time we were getting about twenty narratives a week so it would… it is
very difficult for me to do all twenty… translate all twenty narratives. So
they would have volunteers come in who I have assessed that speak both English
and Spanish and then they would translate the narrative. Then I would sit down
with the client and read back what was translated to them.
COUNSEL: So clients would be asked to bring in
their own narratives in their own … in Spanish?
WITNESS: Yes the client is given a form that…
in the case of a client that speaks Spanish, is given the personal information
form translated into Spanish. They fill that out and we translate it back to
English and then the narrative since they write it in their own language, we
translate it back to them.
(CTR pp. 1017-1018)
[…]
WITNESS: Well our goal is to make sure that the
client first of all fills in the forms on time. So you know if the client
comes in with a very extensive narrative that is too long then we ask them to …
to shorten it up due the fact that we will not be able to translate it. And if
a narrative is too short we just ask them to be you know, I ask them if that is
everything that they want to include and explain to them that you know this is
what is going to be the basis of their claim.
COUNSEL: And is there any guideline as to the
like appropriate length of a narrative or how much you guys are really able to
translate?
WTNESS: Only in the case of … like we cannot
tell them how much they need to write because every case is different. So
there is no way of us to know how you know that every case fits into two
pages. We just try to you know guide that it you know obviously you cannot
tell why you are afraid of going back home in just a paragraph. And if you
bring me twenty pages I just do not have the capacity to translate it.
Most of the cases that we see is last minutes
because it is after they have been turned down from Legal Aid and that type of
scenario, so there is also time constraints in the way we fill out the forms.
COUNSEL: And what is the effect of those time
constraints?
WITNESS: It, well the effect depends on when
the client comes in. If it is two days before the personal information form is
due then you know it affects in how much time we have to sit down and do the
translation and work with the client. So the client has two days before the
personal information form is due and shows up with a ten-page narrative
sometimes we have to tell them if they could summarize and add amendments to it
later.
COUNSEL: Sorry; summarize and?
WITNESS: Add amendments to it after because we
know how strict the Immigration and Refugee Board can be with submitting
personal information forms on time.
(CTR pp. 1019-1020)
[…]
COUNSEL: You mentioned something before about
telling clients that … that amendments could be made. What is your … what do
you tell clients about their ability to make amendments to their personal
information form?
WITNESS: Well that if they get legal counsel
the counsel could review the … the narrative with them and see if there are any
things to change. We also know that clients at the beginning can have problems
with recollection or you know they are stressed out by the whole process of
getting everything in on time that maybe some details might have been left out
due to either their forgetfulness or due to the rush of having to get it in on
time. So we have explained to them that if you know they believe … first of
all we ask them if that is everything that they have written down is what they
want to be written, but also we assure them that they can maybe submit changes
to it if something happens, they (inaudible) something differently when they
look at it over time.
(CTR p. 1021)
[27]
When asked by counsel if he was familiar with
any of the Federal Court jurisprudence concerning personal information form
amendments he stated that he was not. He also confirmed that he did not
remember the Applicant, that there was no record of whether anyone else at the
centre had assisted him or not and that the centre did not keep records of any
drafts or other documents brought in by clients.
[28]
Counsel then questioned the Applicant about his
health problems and how his PIF narrative was prepared. He confirmed that he
had made an appointment with the centre and that his original PIF narrative was
prepared four days short of the filing deadline.
[29]
When asked what he had meant when he had testified
that Mr. Rico had translated his original PIF narrative from Spanish to English,
but not English to Spanish, the Applicant stated:
CLAIMANT: When they are helping you to prepare
the narrative at that moment when you sit just beside the person who is helping
you they are guiding you on, with aspects that in their opinion believe that it
will help you with the case. So there they would take from you the areas that
they believed are of importance and then they prepare in the English language
on the computer. So I never received a document in Spanish, they only took
whatever . . . from my narrative whatever they thought that it was important.
COUNSEL: So that, so my question is like you
said that they translated it from Spanish to English which you are explaining
they did on the computer. Now why did you say that they did not translate it
from English back to Spanish?
CLAIMANT: Well because with respect to that my
understanding is that if they had provided to me the translation from English
to Spanish then the Spanish should have reflected what I had or what they have
observed from the story that I have told them in Spanish and they have written
into English.
(CTR p. 1026)
[30]
The Applicant stated that a section by section
approach was taken to preparing and translating the PIF narrative and confirmed
that he believed he had understood its contents when he signed it.
[31]
Counsel then questioned the Applicant about his
story. Time ran out and a final session was scheduled for November 29, 2012.
On November 29, 2012 the fifth and final hearing session was held during which
counsel finished questioning the Applicant about his story.
Analysis
[32]
Having reviewed the transcripts, it is apparent
that the Member was not only testing the Applicant’s evidence, which he was
clearly entitled to do, but was in some instances misinterpreting the evidence
and then challenging the Applicant based on that misinterpretation and alleged
contradiction.
[33]
As to the issue of the Applicant’s explanation
for the omissions, the Member was not required to accept the Applicant’s
explanation for the amendments to his PIF narrative (Houshan v Canada (Minister of Citizenship and Immigration), 2010 FC 650 at para 19; Kaleja v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at para 18). Further, as
stated in Fatih v Canada (Minister of Citizenship and Immigration), 2012
FC 857 at paras 65-66, the Member was entitled to draw negative credibility
inferences based on omissions that are not reasonably explained:
[66] It is well established that a board
may draw negative inferences on an applicant's credibility where relevant and
important incidents that are not included in the PIF are revealed at a later
stage in the refugee proceeding and a reasonable explanation is not provided
for their earlier omission (see Adewoyin v Canada (Minister of Citizenship
and Immigration), 2004 FC 905, [2004] FCJ No 1112 at paragraph 18; Santillan
v Canada (Minister of Citizenship and Immigration), 2011 FC 1297, [2011]
FCJ No 1586 at paragraph 29; and Guzun v Canada (Minister of Citizenship and
Immigration), 2011 FC 1324, [2011] FCJ No 1615 at paragraph 18).
[34]
In this case it is apparent from the hearing
transcripts that the Applicant repeatedly gave the same explanation for why the
two narratives were different. The Respondent submits that the Applicant
conceded that he replied “I don’t know” on multiple occasions. And, it is
correct that he did so. However, when viewed in the context of the transcripts
and the evidence as a whole, this does not truly reflect what transpired or the
Applicant’s explanation.
[35]
The Applicant testified that he had prepared a
detailed PIF narrative in Spanish. However, that he had been guided by the
advice of the centre which helped him. The individual who helped him had
focused on certain aspects of his claim and had not translated the whole of his
Spanish PIF narrative. A general, and not detailed, version of events was
generated. He also testified that he was told that he could amend the PIF narrative
later if necessary. Having explained this, and being faced with the Member’s repeated
questioning as to why the details included in the amended PIF narrative were omitted
from his original PIF narrative, the Applicant could only answer, as he did,
that he did not know.
[36]
The Applicant’s explanation that the centre’s
advice was the reason for the omissions from the original PIF need not have
been accepted by the Member. However, the Member of his own accord summoned a
witness from the centre, Mr. Rico, whose testimony supported the Applicant’s
explanation for the omissions. Specifically, his evidence supported the
Applicant’s contentions that it was not necessarily Mr. Rico who assisted with
the translation of his PIF from Spanish to English (although he oversaw the
final result); that claimants brought PIFs that they had prepared in their own
language to the centre; that the centre did not have the capacity to translate
lengthy PIFs and advised their clients to shorten or summarize them as
necessary and that they would be able to amend later. Mr. Rico also noted that
he had no knowledge of the jurisprudence regarding PIF amendments.
[37]
The Respondent submits that a review of the decision
indicates that the witness’ testimony does not corroborate the substance of the
Applicant’s claim for protection. This is not surprising, as the witness was
never asked by either the Member or Applicant’s counsel to corroborate the
story of persecution, nor was he in a position to do so.
[38]
The Respondent also submits that, as stated in
the decision “…the only reason for the panel in summoning
him was to ascertain whether he had translated the PIF from English to Spanish
to the claimant”. Therefore, the fact that the witness happened to
corroborate the Applicant’s explanation for the amendments to the PIF does not
require the Member to accept this corroboration.
[39]
I would first note that it is apparent from the
transcripts that the Applicant was trying to convey to the Member that his PIF
was translated from Spanish to English and that persons at the centre, other
than Mr. Rico, had assisted him in this regard. When the Member interrupted
him and required him to answer whether it was true or not that Mr. Rico had translated
the document from English to Spanish, he responded that it was not. In
contrast, what the Member asked Mr. Rico was whether he had accurately interpreted
the entire contents of the form from English to Spanish for the Applicant
and he confirmed that he had. When the Applicant was subsequently questioned
by his own counsel, he also confirmed this. In my view, the Member’s brief
questioning of the witness did not clarify whether the witness was
contradicting the Applicant. The point in issue seeming to have been whether
it was Mr. Rico who had translated the Spanish PIF to English and whether that
translation included the whole of the content of the Spanish PIF, not, as the
Applicant subsequently confirmed, that Mr. Rico had not interpreted into
Spanish the completed English PIF.
[40]
I would also note that the Member stated that
the reason why he summoned the witness was because the Applicant testified that
the person who had signed the interpreter’s declaration in the PIF, Mr. Rico,
was not the person who had actually translated the PIF to him, and so he wanted
to settle that issue. While the Member did not pursue this point with the
witness, when questioned by counsel for the Applicant, the witness confirmed
that it is often volunteers who assist in the front line translation. This was
exactly the information that the Applicant had tried to explain in his
testimony and it corroborated his evidence in that regard.
[41]
Indeed, the Member asked the Applicant, “[I]f I were to call him [Mr. Rico] as a witness he would
confirm that fact that you gave him a lot more information than what he put down
in your original personal information form?” The Member did not ask the
witness this when summoned. However, Mr. Rico’s evidence when questioned by
counsel for the Applicant was that claimants provide their own detailed PIFs
which are translated and can be summarised when they are too long, especially
when the translation must occur within a very short time frame before the
filing deadline.
[42]
In my view, the Member should have addressed the
witness’s testimony that corroborated the Applicant’s explanation for the
omissions in the original PIF narrative. This was important evidence because
the Member reached a negative credibility finding on the basis that no
reasonable explanation for the omissions had been given. The Member accepted
Mr. Rico’s testimony respecting the interpretation of the PIF yet, when faced
with evidence that corroborated the Applicant’s explanation, the Member did not
refer to it or give any indication either that he did not accept the witness’
testimony on these points or, if he did not, the basis for that finding. In my
view, this was a reviewable error. The more important the evidence that is not
specifically mentioned and analysed in the reasons, the more willing a court
may be to infer from that the decision-maker made an erroneous finding of fact
without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 17; Ultima v
Canada (Minister of Citizenship and Immigration), 2013 FC 81 at paras 17,
35).
[43]
In this case the Member failed to assess the
explanation offered for the omissions in the original PIF narrative in light of
the corroborating evidence given by the witness that he himself summoned. The
Member’s role was to assess the Applicant’s explanations for the amendments. As
the Member failed to do so, I find his treatment of that evidence and resultant
conclusion that no reasonable explanation for the omissions had been given and
resultant assessment of the Applicant’s credibility to be unreasonable (Okoli
v Canada (Minister of Citizenship and Immigration), 2009 FC 332 at paras
23, 27-28, 33).
Costs
[44]
As to costs, the Applicant submits that pursuant
to Rule 22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22, this Court should, for special reasons, order costs in his favour. Specifically,
the Applicant submits that he should be awarded costs on the basis that an
immigration official engaged in misleading or abusive conduct or that the
Minister unreasonably opposed an obviously meritorious application for judicial
review, both as addressed in Ndungu v Canada (Minister of Citizenship
and Immigration), 2011 FCA 208 at para 7. Further, rather than addressing
the issues, the Respondent addressed other matters and made a personal attack
on the Applicant and his counsel.
[45]
The Respondent, needless to say, does not agree.
It submits that the language of the Applicant’s submissions, which are on the
public record, brings into question the integrity of the Member and the
immigration system. It further submits that both the Member and counsel were
simply doing their jobs and that, in any event, there were sufficient
inconsistencies in the evidence to warrant both the Member’s approach and
opposition to the judicial review.
[46]
I do not view the actions of either party as
personal attacks on the other nor as conduct amounting to “special reasons” justifying
an award of costs in favour of the Applicant.
Email this Content