Docket: IMM-5504-13
Citation:
2015 FC 351
Toronto, Ontario, March 19, 2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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JUAN JOSE DAVILA ALVIZURIS
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review by
Juan Jose Davila Alvizuris [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision by the Immigration
and Refugee Board of Canada, Refugee Protection Division [RPD], dated July 25,
2013, wherein the RPD determined that the Applicant was not a Convention
refugee or a person in need of protection.
[2]
The Applicant was born on April 7, 1985 and is a
citizen of Guatemala by birth. He alleges fear and risk to his life at the
hands of kidnappers who are aware that he witnessed a kidnapping. He made the
following allegations in support of his refugee protection claim:
1.
On or about June 20, 2010, the Applicant
witnessed an incident as he was going to pick up his brother-in-law after work.
He was driving behind a truck and saw a parked car that was waiting for the
truck. Two men came to the Applicant’s car and pointed their guns at him,
telling him not to move or do anything or he would be killed. Other men went to
the truck, beat the male driver and kidnapped the female passenger. The men
told the Applicant not to say anything about what had taken place or he would
be killed. Although unfamiliar with them, the Applicant had seen the faces of
the driver who was beaten, the lady who was kidnapped, and some unmasked
kidnappers.
2.
The Applicant went to his company and notified
the guards whom in turn notified the police. The Applicant then went home and
never interviewed with the police. He did not go to the police because he was
afraid that the armed group would act on their threats or would have been
connected with the police or the Army. Nothing was reported in the news the
next day. The Applicant believes that the police intentionally wanted this
incident to be low profile. The Applicant later learned that the victim was a
member of a very wealthy family and was being ransomed. The victim’s brother,
whose last name is Gonzalez Eliazar, paid the ransom and the victim was
released. The police never succeeded in capturing the kidnappers.
3.
The Applicant feared for his life as he had
witnessed the incident.
4.
The Applicant moved to Retalhuleu, some 150-200
kilometres from the capital. He believes that the police had transferred their
report to the attorney general in the meantime and that an investigation was
being initiated. The Applicant was made aware that suspicious unknown
individuals had come looking for him at his former workplace in Guatemala City
on at least three occasions, inquiring about his whereabouts with his
co-workers and the administration. One of the Applicant’s colleagues, Jose Pio
Ordonez, was harassed and threatened. Mr. Ordonez left for Santa Lucia Milpas
Altas.
5.
The Applicant left Guatemala for Canada when he learned that people were looking for him on or about September 23, 2010,
with a sister named Ruth whose husband was also being persecuted. The Applicant
has an uncle, Jose Vicente Alvizuris, who is a Canadian citizen. The Applicant
spent some time in the USA but did not claim refugee status there because he
was told that it was almost impossible for Guatemalans to obtain status there
but also because his intention was to come to Canada.
[3]
The RPD rejected the Applicant’s claim on July
25, 2013. He filed an application for leave and judicial review on August 20,
2013. Leave to apply for judicial review was granted December 16, 2014.
[4]
The determinative issue for the RPD was
credibility. In Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir],
the Supreme Court of Canada held that a standard of review analysis is
unnecessary where “the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question.” It is well established
that reasonableness is the applicable standard of review to credibility
findings: Cetinkaya v Canada (Minister of Citizenship and Immigration),
2012 FC 8 at para 17. In this connection I note that findings of credibility
are the heartland of the RPD’s jurisdiction: Giron v Canada (Minister of Employment and Immigration) (1992), 143 NR 238 at 239 (CA).
[5]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[6]
The RPD made the following findings. My comments
follow each:
1.
The RPD noted discrepancies between the
Applicant’s amended Personal Information Form [PIF] and his oral testimony. The
Applicant says that the driver of the vehicle was taken out of the vehicle at
gunpoint, beaten up and left on the ground, but alleged at the hearing that the
driver was beaten up while he was still in the vehicle. When asked to explain
this discrepancy, the Applicant suggested that the driver was beaten when he
was coming out of the vehicle. The RPD drew a negative inference with respect
to the Applicant’s credibility.
Court comment: The RPD asked the Applicant a number of questions on and around
this issue, came to a conclusion that there was a difference between his
answers on his amended PIF (submitted fairly recently in terms of the hearing
date) and his testimony at the hearing. For the RPD, the issue came down to
whether the Applicant had testified that the driver of the car was beaten while
still in the pickup, or outside it. The RPD asked the Applicant to explain what
is considered the difference to be and gave him an opportunity to explain. In
the result, having concluded that the Applicant testified the beating took
place while the driver was still in the pickup, the RPD found the explanation
unsatisfactory, holding it was reasonable to expect consistency between oral
testimony and evidence in the PIF narrative, and drew a negative inference. In
my view, having reviewed the record, the RPD erred in its summary of the
Applicant’s testimony because he had not testified that the beating took place
while the driver was still in the pickup. In my view, the RPD finding is not
reasonable, but neither do I consider this aspect of the Applicant’s testimony
critical to his claim.
2.
In the immigration notes, the Applicant
testified that only one man came to his car. However, in his PIF and at the
hearing, the Applicant testified that two men came to his car. The Applicant
could not explain this discrepancy and simply reiterated that there were two
men. The RPD determined that, on a balance of probabilities, the Applicant was
not approached by armed men during an alleged kidnapping incident.
Court comment: This finding is reasonable. This is the central event that
impelled the Applicant to leave and seek asylum in Canada. He must be expected
to know if he was assaulted by one man or by two. It is unreasonable for him to
be inconsistent in his description of this assault between what he told the
officer in his Port of Entry [POE] notes, as read back to him and certified by
the official translator, and his PIF narratives and testimony on this critical
point. The RPD probed the Applicant and gave him an opportunity to afford an
explanation. There is no basis on the record to find as the Applicant suggests
that the POE notes (in fact, Form IMM 5611) are the result of mistakes made by
either the officer or by the translator. In any event, this is the very sort of
assessment lying at the heart of the RPD’s jurisdiction. In my view this
finding is within the range of reasonable outcomes permitted by Dunsmuir.
3.
The Applicant testified that two of the five
kidnappers had their faces covered. In the POE notes, it was said that all five
men had their faces covered. The Applicant explained that this discrepancy is
because he was asked to summarize the story. The RPD was not satisfied with
this explanation, noting that summarizing a story may lead to a condensed
version of it, but not to different versions. The RPD drew a negative inference
with respect to the Applicant’s credibility.
Court comment: Here again the Applicant gives very different information on the
central and critical incident which he says caused him to seek asylum in Canada. Whether there were five as he originally advised, or only two masked men who
carried out the alleged kidnapping and beating of the woman and her driver, and
the alleged assault on the Applicant personally, is something in respect of
which one may reasonably expect the victim to be consistent. Certainly, the
conflict in the evidence found by the RPD exists. The RPD probed the Applicant
on it, and gave him an opportunity to explain the inconsistency as indeed it
did on every point. This is the very sort of factual inconsistency the RPD is
intended to resolve. It did so and in my view acted reasonably and came to a
conclusion within the reasonable range of permitted outcomes.
4.
In the amended PIF, the security guards called
the police from the workplace. At the hearing, the Applicant testified that the
police came by the scene of the alleged kidnapping and the guards stopped them
and told them what had happened. The Applicant explained that the interpreter
made the mistake. The RPD drew a negative inference with respect to the
Applicant’s credibility.
Court comment: In my view, there was a conflict in the material, and therefore
the RPD was obliged to consider and assess the issue. It did so in clear and
intelligible reasons. In my view, the RPD’s assessment falls within the range
of reasonable outcomes described by Dunsmuir. I note that again here,
the Applicant suggests interpreter error; however this argument must be
rejected because there is no basis on which to make any such finding.
5.
The Applicant omitted a part about the police in
his oral testimony that was part of his amended narrative. The Applicant explained
that he meant guards and that the interpreter made a mistake. The RPD drew a
negative inference with respect to the Applicant’s credibility.
Court comment: Again, there is no dispute that this evidence was in his amended
PIF, which as noted was prepared relatively close to the hearing, but not in
the Applicant’s oral testimony. I would not expect refugee claimants to
memorize and recite every fact in oral testimony set out in their PIF(s).
However the RPD was within its jurisdiction to follow up on points such as this
and its assessment of responses is a key part of its mandate. In my view, on
the record, its assessment is reasonable. The Applicant was asked and given an
opportunity to explain this omission, which explanation the RPD found
unsatisfactory. Once again, the Applicant blamed the interpreter, but did so
without an evidentiary foundation. Interpreter errors cannot become a means to
explain away every inconsistency on judicial review. Interpreter errors, in my
view, should only be entertained at this level where they were squarely raised
with the decision-maker below or are reasonably grounded in the record. This is
consistent with Justice Campbell’s decision to accept an argument of
interpreter error were the error was on the record in Grazhd v Canada (Minister of Citizenship and Immigration), 1999 CanLII 8268. There the Court
said: “I am satisfied that, on the face of the evidence
on the record, a legitimate error in interpretation of this diploma was made by
the immigration officer.”
6.
The Applicant testified at the hearing that his
friend and colleague, Mr. Ordonez, left the company sometime in 2012 but did
not remember when. In his PIF narrative however, the Applicant said that Mr.
Ordonez left the company in May 2011. The Applicant’s explanation was that he
could not remember the date. The RPD found this explanation unsatisfactory.
Court comment: The RPD hearing was in
March, 2013, not that long after the dates of the alleged departure. There is
no doubt that the RPD should not criticize claimants for trivial mistakes over
less relevant dates, in respect of which there is ample authority: Kanagarasa
v Canada (Minister of Citizenship and Immigration), 2015 FC 145 at paras
12-13; Venegas Beltran v Canada (Minister of Citizenship and Immigration),
2011 FC 1475 at paras 3-6. That said the date his friend and colleague left the
company is something the Applicant would reasonably know. On balance, in my
view, and given the RPD’s key role in determining credibility, the RPD’s
assessment is reasonable as per Dunsmuir.
[7]
Overall, the Applicant disagrees with the RPD
decision and points to what he describes as mistakes made either by the RPD
itself, or transcription or interpretation errors made by border officers or
translators. In reality, the Applicant is asking this Court to reweigh the
evidence before the RPD. While I have accepted that the RPD failed in one non-critical
respect, read as a whole, I find that its reasons are justified, transparent
and intelligible. Taken and read as a whole, this decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[8]
Neither party proposed a question for
certification, and none arises.
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