Diaz Puentes v. Canada (Minister of Citizenship and Immigration), 2006 FC 75

Date: 20060126

Docket: IMM-1357-05

Citation: 2006 FC 75

Ottawa, Ontario, January 26, 2006

PRESENT:      The Honourable Mr. Justice O'Reilly

BETWEEN:

JAVIER JESUS DIAZ PUENTES

LIZ RAQUEL URDANETA GIL

JAVIER A DIAZ URDANETA

GABRIELA A. FIAZ URDANETA

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT ANDJUDGMENT

[1]                Mr. Diaz Puentes left Venezuela and came to Canada with his family in 2004. He claims that he was harassed and threatened in Venezuela because of his political opposition to the Chavez government. He sought refugee protection here, but a panel of the Immigration and Refugee Board dismissed his claim. He argues that the Board failed to consider important evidence and asks me to order a new hearing. I agree that the Board overlooked key documentary evidence supporting Mr. Diaz Puentes' claim. Therefore, I will grant this application for judicial review.

I. Issue

[2]                Did the Board fail to consider significant documentary evidence supporting the claim?

II. Analysis

[3]                I can overturn the Board's decision only if I find that it is out of keeping with the evidence before it.

[4]                The Board accepted Mr. Diaz Puentes' allegation that he had been fired from his job with the state oil company after a strike in 2003. It also found that Mr. Diaz Puentes was politically active with a group called "First Justice", and that he and his family received threats as a result. But the Board did not believe that Mr. Diaz Puentes had a political profile that would continue to attract the attention of his opponents. It felt that he had embellished his political activities in his oral testimony because he described a leadership role that he had not mentioned in his written narrative.

[5]                In Mr. Diaz Puentes' written narrative, he said that he was an activist who helped organize petitions seeking President Chavez's resignation. In his oral testimony, he claimed that he was the main delegate in his area and, in that capacity, was involved in creating "strategic groups", providing communications training and giving radio interviews. The Board noted these discrepancies and concluded that they were embellishments. Accordingly, it dealt with Mr. Diaz Puentes' claim on the basis that he was an ordinary, "rank and file" activist. As such, according to current conditions, he was no longer in danger, especially in certain parts of Venezuela.

[6]                But the Board failed to consider documentary evidence that corroborated the role that Mr. Diaz Puentes described in his oral testimony. These documents confirm that Mr. Diaz Puentes:

●           was the representative delegate for First Justice in his area, and a member of the strategic team collecting signatures demanding the recall of President Chavez;

●.          was a leader in his community and organized citizens' assemblies and communications networks.

[7]                It was certainly open to the Board to note the discrepancy between Mr. Diaz Puentes' written narrative and his oral testimony. However, before concluding that he had embellished his testimony, it should have considered the evidence as a whole, including the documentary evidence.

[8]                In my view, the Board erred in concluding, without reference to the documentary evidence to the contrary, that Mr. Diaz Puentes' political profile was no different from that of the millions of other citizens who opposed the Chavez government. As that finding was central to the Board's decision, I must grant this application for judicial review and order a new hearing. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

            THIS COURT'S JUDGMENT IS that:

1. The application for judicial review is granted and a new hearing is ordered;
2. No question of general importance is stated.

"James W. O'Reilly"

FEDERAL COURT

NAME OF COUNSEL ANDSOLICITORS OF RECORD

DOCKET:                                           IMM-1357-05

STYLE OF CAUSE:                           JAVIER JESUS DIAZ PUENTES, ET AL v. MCI

PLACE OF HEARING:                     Toronto, ON.

DATE OF HEARING:                       January 9, 2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          O'Reilly J.

DATED:                                              January 26, 2006

APPEARANCES:

                                                                              Mr. Michael Loebach          FOR THE APPLICANTS

Ms.Marina Stefanovic                                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

                                                                              Mr. Michael Loebach          FOR THE APPLICANTS                  Toronto, ON                                       

tOTTT

John H. Sims, Q.C.

Toronto, ON                                                                             FOR THE RESPONDENT