Date: 20060511
Docket: IMM-6015-05
Citation: 2006 FC 543
BETWEEN:
FRANCISCO MOJICA ROMO
PATRICIA BARBOZA
DIAZ
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the IRB)
dated September 2, 2005, that the applicants are not “Convention refugees” or
“persons in need of protection” as defined by sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
Francisco
Mojica Romo and Patricia Barboza Diaz (the applicants) are citizens of Mexico.
Patricia Barboza Diaz’s claim is based on the claim of her husband, Francisco
Mojica Romo (the applicant), who alleges that he fears persecution on the basis
of his membership in a particular social group. They also allege that they are
“persons in need of protection” in that they would be personally subjected to a
danger of torture and to a risk to their life, or to a risk of cruel and
unusual treatment or punishment in Mexico.
[3]
On
January 20, 2005, the applicant, who says that he witnessed a drug transaction
in his neighbourhood and reported this transaction to the judicial police,
became the target of the dealer nicknamed “the Tata”, as well as of the
judicial police.
[4]
On
January 21, 2005, the applicant was allegedly persecuted in that he was
assaulted twice and was threatened, namely with death.
[5]
On
February 7, 2005, during the second assault, the applicant’s wife, then
pregnant, was pushed and hurt, resulting in the loss of her twins.
[6]
Fearing
for their lives, the applicants left Mexico for Canada on February 28, 2005,
the date that they claimed refugee protection.
[7]
The
applicants allege that the IRB erred in law based on the fact that its reasons
were unreasonable, not based on the evidence and involved errors of law.
[8]
In
its analysis at page 2 of the decision, the IRB writes:
The credibility of the
evidence presented by the claimants was undermined by a fundamental contradiction
that goes to the very heart of their refugee protection claim.
. . .
This discrepancy could
not be explained to the panel’s satisfaction during the hearing of
August 31, 2005; it is therefore a fatal contradiction.
. . .
The panel is of the
opinion that such a contradiction removes all credibility from this refugee
protection claim.
[10]
The
applicants are correct in contending that the Federal Court has pointed out
some of the pitfalls for tribunals using port of entry notes and PIFs, going
overboard to identify contradictions and omissions in order to find a lack of
credibility, when that was not always the case. The nature and significance of
the contradiction or the omission as well as the time of the amendment must be
taken into account as well as any explanation given by the claimant (Singh
v. Canada (M.C.I.), [1996] F.C.J. No. 963 (F.C.T.D.) (QL) and Anthonipillai
v. Canada (M.C.I.), [1995] F.C.J. No. 1774 (F.C.T.D.) (QL)).
[11]
Certainly,
if an applicant cannot satisfactorily explain a contradiction regarding a
central element of his story, it would not be patently unreasonable for the IRB
to find that the applicants’ story is not credible (Chen v. Minister of
Citizenship and Immigration, 2005 FC 767).
[12]
The
nature and significance of the applicants’ contradiction or omission in the
immigration officer’s notes at the port of entry and their PIFs must therefore
be assessed.
[13]
In
my opinion, the contradiction identified by the IRB is not a major
contradiction. It is true that the applicants did claim at the port of entry
that death threats made against the applicant were made by “strangers”, while
they stated in their PIFs that they feared the corrupt judicial police who were
with the drug trafficker “Tata”. At the hearing, they testified initially that
they feared the judicial police and “the Tata”. The applicants also used the
term “strangers” repeatedly in their testimony to describe the people that
harassed them, who they now presume were people associated with “the Tata” and
who they presume were judicial police. In my opinion, it is plausible that the
applicants would have used the term “strangers” to describe the persons who
harassed them because they did not know who those individuals were, even though
they did learn some time later that those individuals were probably had ties
with “the Tata” and that they were probably judicial police.
[14]
The
IRB therefore noted that there was a contradiction between the notes of the
immigration officer at the port of entry and the applicants’ PIFs. However, I
am not persuaded that it is a contradiction of great significance. In my
opinion, it is understandable that the applicants would have used the term
“strangers” in a very general sense, a term that they also used in their
testimony.
This lack of credibility
on the part of the claimants was confirmed several times during the hearing.
During his testimony, the principal claimant contradicted himself numerous
times.
[16]
The
Federal Court of Appeal has stated on several occasions that the grounds
leading to a dismissal of the evidence or a negative credibility finding must
be set out clearly. That usually includes the obligation to provide explanations
or examples. It is not enough to say that the evidence is not trustworthy,
because that would create the appearance of arbitrariness (Tung v. Canada
(M.E.I.), [1991] F.C.J. No. 292 (F.C.A.) (QL); Guzman v. Canada
(M.C.I.), [1997] F.C.J. No. 1816 (F.C.T.D.); Armson v. Canada
(M.E.I.), [1989] F.C.J. No. 800 (F.C.A.) (QL)).
[17]
As
the Federal Court of Appeal explained in Mehterian v. Canada (M.E.I.),
[1992] F.C.J. No. 545 (QL):
If this obligation is to be
met, the reasons must be sufficiently clear, precise and intelligible that the
claimant may know why his claim has failed and decide whether to seek leave to
appeal, where necessary.
[18]
The
respondent contends that, in this case, the situation is different from the one
in the Mehterian decision, where the reasons for the IRB decision were
inexistent.
[19]
In
my opinion, even if the IRB in this case provided reasons, those reasons do not
explain in clear, precise and intelligible terms in what way the applicant
“contradicted himself numerous times”. The IRB did not give any example other
than the one relating to the minor contradiction that I addressed earlier.
[20]
In my
opinion, the IRB failed to give adequate reasons for its decision and, in so
doing, breached the principles of natural justice.
[21]
For all of
these reasons, the application for judicial review is allowed and the matter
referred back to a differently constituted panel of the IRB for rehearing and
redetermination consistent with these reasons.
“Yvon
Pinard”
Ottawa,
Ontario
May
11, 2006
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6015-05
STYLE
OF CAUSE: FRANCISCO MOJICA ROMO, PATRICIA BARBOZA
DIAZ v. MINISTER OF CIOTIZENSHIP AND
IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: April 13, 2006
REASONS FOR JUDGEMENT: Pinard J.
DATE
OF REASONS: May 11, 2006
APPEARANCES:
Cristina Marinelli FOR THE
APPLICANTS
Steve Bell FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Cristina
Marinelli FOR THE
APPLICANTS
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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