Date: 20060118
Docket: IMM-703-05
Citation: 2006 FC 44
Toronto, Ontario, January 18, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
FINLAHY CAROLYN CORTEZ ALVAREZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This application for judicial review of a decision of the Refugee Protection Division, Immigration and Refugee Board, turns mainly on whether the panel considering Ms. Alvarez' claim for protection had a duty to confront her during the hearing with the contradictions in her evidence. For the reasons set out below, I am satisfied that there was no breach of procedural fairness or other reviewable error and the application must be dismissed.
[2] The applicant, Finlahy Carolyn Cortez Alvarez, is a 23 year-old citizen of Venezuela who claims protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[3] Ms. Alvarez alleges that she is at risk of persecution by reason of her membership in a particular social group, her family, on the basis of their political beliefs. Ms. Alvarez, who comes from a relatively affluent background, claims that for that reason alone, her family were considered to be opponents of the Chavez government in Venezuela. Her mother was also a known activist against the regime. The applicant had, herself, taken part in some demonstrations and had been the object of threats and a robbery to which she attributed political motives.
[4] The Board determined the applicant not to be a refugee or a person in need of protection for a number of reasons. There was insufficient credible and trustworthy evidence to establish that there is a reasonable chance she would be at risk of persecution if she were to return to Venezuela. In addition, the Board found that the applicant had a viable internal flight alternative (IFA) in Cumana or Cuidad Guayana.
[5] In determining that the applicant had a viable IFA the Board conducted the two-part test set out by the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, (1991) 140 N.R. 138. The first stage of the two-part test is to consider whether there is a serious possibility that the claimant would be persecuted in the suggested IFA locations. In this case the Board thoroughly considered the political profile of the applicant and her family before determining that she was unlikely to be persecuted in the suggested IFA. The applicant had testified she is not a member of a political party and that the extent of her involvement in anti-government protests had been participation in five to eight peaceful demonstrations during national strikes.
[6] The Board had difficulty with the fact that the applicant had given several different versions of the alleged robbery. Ultimately the Board was unable to find sufficient credible and trustworthy evidence to establish that the alleged robbery was connected to the political activities of the claimant and her family. No such connection was made in the applicant's previous statements in her personal information form (PIF) or an interview with immigration officials at the Port of Entry. Accordingly, the Board was unable to conclude that there was a serious risk of persecution in the suggested IFA locations.
[7] The second element of the test outlined in Rasaratnam, above, is whether it would be unreasonably harsh for the claimant to go to the proposed IFA. In this case, the Board considered the age, education and experience of the applicant in determining that it would not be unduly harsh for her to relocate to another part of Venezuela. As stated in Farooq v. Canada (Minister of Citizenship and Immigration), 2005 FC 867, [2005] F.C.J. No. 1081 (QL),the applicant must meet a very high threshold in order to establish that it would be unreasonable for her to seek refuge in another part of her country and the Board was not satisfied that the threshold had been met.
[8] The applicant submits that the Board erred in making adverse credibility findings because of apparent inconsistencies between the applicant's testimony and her twice revised narrative and Port of Entry interview. The applicant testified that her parents recently went into hiding and put their property up for sale because of threats related to their political activities. She also testified that her sister had been the victim of an "express" (i.e., short-lived) kidnapping and had fled to the United States. The revised narratives and interview omit any references to the applicant's parents or the sister's kidnapping.
[9] The Board also gave no weight to a lawyer's letter submitted just before the hearing because it was inconsistent with the applicant's sworn testimony. The letter made no mention of the parents' situation and also stated that both the applicant and her sister had been the subject of kidnappings.
[10] The applicant submits that the Board erred in law by not confronting the applicant with these omissions and inconsistencies thereby failing to give her an opportunity to explain them and to clarify her evidence: Rajaratnam v. Canada(Minister of Employment and Immigration) (1991), 135 N.R. 300, [1991] F.C.J. No. 1271 (F.C.A.) (QL).
[11] In Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627 (F.C.T.D) (QL), Madame Justice Danielle Tremblay-Lamer reviewed the authorities and concluded that in determining whether there was a duty on the part of a tribunal to confront an applicant with contradictions in their evidence, regard should be had in each case to a number of factors or guidelines which she set out as follows at paragraph 16:
1. Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious?
2. Was it in answer to a direct question from the panel?
3. Was it an actual contradiction or just a slip?
4, Was the applicant represented by counsel, in which case counsel could have questioned him on any contradiction?
5. Was the applicant communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely.
6. Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities?
[12] This test has been cited by approval a number of times by this Court: Herrera v. Canada (Minister of Citizenship and Immigration), 2005 FC 1233, [2005] F.C.J. No. 1499 (QL); Demaj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1333, [2005] F.C.J. No. 1628 (QL); Farooq v. Canada (Minister of Citizenship and Immigration), 2005 FC 867, [2005] F.C.J. No. 1081 (QL); Toure v. Canada (Minister of Citizenship and Immigration), 2004 FC 1388, [2004] F.C.J. No. 1668 (QL).
[13] Considering these factors, I find that in the case at bar, the panel was not required to confront the applicant with the discrepancies between her testimony and what she had disclosed in her prior accounts. The applicant was represented by experienced counsel throughout the proceedings, from the initial task of completing her PIF to the hearing before the Board. There is no indication that the inconsistencies resulted from any translation difficulties or were the result of a slip of the tongue. The contradictions were obvious and did not arise from a careful analysis by a panel seeking to justify an adverse credibility finding. Indeed counsel alluded to a concern about inconsistency in his closing submissions to the Board.
[14] It was also open to the Board to draw an adverse inference from the absence of material information in the documentary evidence put forward by the applicant. Given that the applicant's parents' political activities were central to the claim, the lack of any mention in the lawyer's letter to her allegation that they had gone into hiding was highly relevant. That and the error respecting the kidnappings were obvious and should have been addressed by the applicant in her testimony in meeting the onus upon her. The Board did not breach any duty to the applicant in not confronting her directly about these matters.
[15] Accordingly, the application is dismissed. No questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
"Richard G. Mosley"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-703-05
STYLE OF CAUSE: FINLAHY CAROLYN CORTEZ ALVAREZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: JANUARY 17, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Loftus Cuddy For the Applicant
Jamie Todd For the Respondent
SOLICITORS OF RECORD:
Gertler & Associates
Etobicoke, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
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