Date:
20061027
Docket:
IMM-1211-06
Citation:
2006 FC 1299
Ottawa, Ontario, October 27,
2006
PRESENT: The Honourable Mr.
Justice Blanchard
BETWEEN:
IVAN
DANIEL DUQUE BENCOMO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
1. Introduction
[1]
The applicant, Mr. Ivan Daniel Duque Bencomo, seeks judicial review of
the negative decision of the Immigration and Refugee Board (IRB) rendered on
February 10, 2006. The IRB determined that Mr. Bencomo was not a “Convention
refugee” or “a person in need of protection”.
2. Facts
[2]
The applicant is a twenty-nine year old citizen of Venezuela who makes a
“refugee sur place” claim on the basis of imputed political opinion and
membership in a particular social group, namely, his family.
[3]
The applicant left Venezuela in 1997 to pursue his studies in the United
States and later in Canada. The applicant’s father and twin brother Gabriel
Duque are allegedly long time activists in the MAS (Socialist Party) in Venezuela.
The applicant made several trips home to Venezuela between 1997 and February
2001.
[4]
In December 2001, the applicant was arrested in Canada on charges of
aggravated sexual assault and unlawful confinement. The applicant was convicted
of these crimes on February 19th, 2004, and sentenced to two years in jail.
However, an appeal was launched and the applicant has been released pending the
appeal.
[5]
The applicant had come to Canada on a student visa. The visa expired
sometime in 2003 but the applicant was not asked to leave due to his ongoing
criminal appeal. An admissibility report was filed on July 14th, 2004, and his
removal has effectively been suspended pending the appeal.
[6]
In June 2005, the applicant’s parents entered Canada to attend his
graduation. At that time they informed him that they and his twin brother have
been under attack by members of the Hugo Chavez-led Bolivarian Circles. The
Applicant was informed that on March 7, 2005, the applicant’s twin brother was
allegedly shot in the arm. As a result, the Applicant alleges a fear of
persecution which stems from the longstanding involvement of his father and
twin brother with the MAS, an opposition party in Venezuela. The Applicant
fears that he would be targeted as a result of his obvious resemblance to his twin
brother. Following their June 2005 visit, the Applicant’s parents returned to Venezuela.
They now reside in Bogota, Colombia.
[7]
The applicant filed his refugee claim on July 7, 2005.
3. Impugned IRB Decision
[8]
The IRB found that the Applicant had not provided credible or plausible
evidence to support his allegations of a fear of persecution.
[9]
The IRB found the Applicant to be vague on the details of both his
brother’s and father’s involvement with the MAS. The IRB noted that the
applicant is not and has never been a member of the MAS party. He has not lived
in Venezuela since 1997 and has not visited since 2001.
[10]
When the Applicant’s parents applied for a visa to enter Canada they
listed only two children, and only one born in 1976, the year of birth of the
applicant. The existence of the Applicant’s twin brother was put in question.
Further, the applicant’s parents had told Immigration Canada that they did not
have family in Canada. The Applicant could not explain why his parents would
not have listed two children born in 1976. The IRB did not believe that the
Applicant was telling the truth and found that the Applicant’s twin brother did
not exist. The IRB found this discrepancy further undermines the Applicant’s
credibility and the believability of his fear of harm should he return to Venezuela.
[11]
The IRB found that the Applicant’s credibility was impugned further by
the documentation provided in support of the claim. It noted that the applicant
produced a letter from the MAS party concerning his father’s involvement, but
the letter merely states that the applicant’s father was a member of the
“direction nationale”, and does not list him as a National Coordinator. The
applicant’s brother’s membership letter reads exactly the same as his father’s,
despite the fact that the claimant’s brother was younger than his father and
active with the youth wing of the party. The Applicant produced no newspaper
articles to confirm his father’s political involvement. The IRB found this to
affect the Applicant’s overall credibility. The applicant also produced a
letter from a lawyer that appears to be sent to the applicant’s father
concerning the applicant’s family problems with the police. The IRB gave the
letter no weight since the Applicant’s evidence is that his family’s problems
relate more to the ruling political party and its supporters and not the
police. The IRB concluded that it did not believe the Applicant’s motivation is
truthful.
[12]
The IRB also found, that the Applicant’s allegations are not plausible
in light of the documentary evidence of the situation in Venezuela. The IRB
found it implausible that MAS party would do nothing, while both father and son
would have faced this type of persecution, considering the father’s
longstanding involvement with the party.
[13]
Finally the IRB found that since the Applicant was never politically
active, he could simply move elsewhere in the Country away from Caracas. In the
circumstances, the IRB found that a valid internal flight alternative (IFA) was
available to the Applicant
4. Issues
[14]
The following issues are raised in this application:
A. Did the Tribunal breach the principles of natural justice in
not providing a translator?
B. Did the IRB err in making its credibility findings?
C. Did the IRB err when it concluded that the applicant had an
IFA?
A. Did
the Tribunal breach the principles of natural justice in not providing a
translator?
[15]
The hearing was conducted in English, as requested by the Applicant in
his PIF. He allegedly requested Spanish-English interpretation at the beginning
of the hearing but apparently none was available. The respondent disagrees
stating that the Applicant requested a hearing in English and did not request
the services of an interpreter. The applicant maintains that he can read and understand
English when not rushed and is not in a stressful situation. He submits that he
agreed to go ahead without an interpreter, against his wishes, because he felt
pressured by the Commissioner, and he believes that he could have done better
with the help of an interpreter. I have carefully reviewed the record and find
no evidence to support the Applicant’s contention.
[16]
At page two of the transcript of the hearing the Presiding Member
states: “[t]here has been no request for – a formal request for an interpreter
today. I understand that you believe that you are able to proceed in English
today?” The applicant’s response is: “Yeah, I am”. Further, the transcript
provides no indication that the Commission in any way pressured the Applicant
as alleged.
[17]
The evidence does not support the request for translation was made, or
that translation was necessary for the conduct of a fair hearing. I am left to
conclude that the principles of natural justice were not violated in this case.
B. Did
the IRB err in making its credibility findings?
[18]
It is well established that the standard of review for credibility
findings is patent unreasonableness. See Thavarathinam v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1469; [2003] F.C.J. No.
1866 (F.C.A.) (QL) at para. 10; Aguebor v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL) at para.
4.
[19]
The IRB accepted the Applicant’s identity. Contained within the identity
documents in the record accepted by the IRB is the Applicant’s birth
certificate which makes clear reference to his twin Ivan Gabriel. The applicant
submits, and the respondent agrees, that the IRB erred in finding that the
applicant’s twin brother does not exist. It appears also that the IRB accepts
that Ivan Gabriel Been Como made a visa application to come to Canada. There is
little doubt the record establishes the existence of the Applicant’s twin
brother contrary to the IRB’s finding. The IRB therefore erred in so finding
and as a result erred in impugning the Applicant’s credibility for this reason.
While acknowledging the error the Respondent argues that it is not
determinative since the IRB’s credibility finding is also based on other
factors which make the finding reasonable. These factors include the following:
a.
The Applicant was vague when testifying about his father’s and brother’s
political involvement;
b.
The failure of the Applicant to produce newspaper articles to
confirm his father’s involvement;
c.
The letter from the party lack detail in respect to the father’s
involvement;
d.
A similar letter from the party in respect to the son’s involvement is
not plausible given his youth;
e.
The parents failed to mention the Applicant’s name in their visa
Application and their statement to the effect they did not have family in Canada,
could not be explained by the Applicant.
[20]
I disagree with the Respondent’s contention. While the above findings
may have been open to the IRB, I am of the view that its erroneous finding that
the Applicant’s twin brother did not exist is central to its overall
credibility determination. At page 3 of its reasons the IRB writes:
According to Immigration Canada,
on December 8, 2004, Ivan Gabriel Ben Como, presumably the claimant’s twin
brother, made a visa application to come to Canada. This was refused. Taken
altogether, Immigration Canada appears to believe that there is no twin brother
in this case. While the claimant denies this, he is unable to explain why his
parents would not have listed two children born in 1976. The panel does not believe
the claimant is telling the truth. The non-existence of the claimant’s brother
further undermines the claimant’s credibility and believability of any fear of
harm should he return to Venezuela. The panel does not believe the claimant is
a truthful witness.
[21]
The IRB erred in concluding to the Applicant’s general lack of
credibility on this basis. The existence of the twin brother is central to the
Applicant’s “sur place” claim since his fear of persecution stems from the
possibility of being confused with his twin brother because of resemblance. The
IRB’s erroneous finding that the twin brother did not exist effectively impugns
the very foundation of the claim and taints the entire decision. In concluding
as it did, the IRB committed a reviewable error.
[22]
Given my above finding which is determinative, it is unnecessary to
consider the other issue raised in this judicial application.
7. Conclusion
[23]
For the above reasons, the application for judicial review is allowed. The
matter will be returned to the IRB for reconsideration before a differently
constituted panel.
[24]
Neither party proposed a question for certification.
The Court declines to certify a question.
ORDER
THIS COURT ORDERS
that:
1. The judicial review of
the decision of the Immigration and Refugee Board is allowed.
2. The matter is returned to the IRB for reconsideration before a
differently constituted panel.
3. No question of general
interest is certified.
“Edmond
P. Blanchard”
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