Date: 20050406
Docket: IMM-3353-04
Citation: 2005 FC 451
Ottawa, Ontario, this 6th day of April, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JUAN CARLOS MANUEL Tudela-Flores
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, a citizen of Peru, arrived in Canada from the United States in June 2003, and claimed refugee status. He claims a well-founded fear of persecution in Peru and to be a person in need of protection because his father ran a newspaper with a partner who openly opposed the Fujimori government. In a decision dated March 17, 2004, a panel of the Immigration and Refugee Board, Refugee Protection Division (the "Board") dismissed his claim. The Applicant seeks judicial review of that decision.
ISSUES
[2] The Applicant raises three issues in this application:
1. Did the Board deny the Applicant procedural fairness by denying the request for an adjournment?
2. Did the Board err in its adverse credibility determination by relying on erroneous findings made in a perverse or capricious manner?
3. Was the finding of adequate state protection unreasonable?
ANALYSIS
Issue#1: Did the Board deny the Applicant procedural fairness by denying the request for an adjournment?
[3] The Applicant did not retain counsel until October 14, 2003. The Notice to Appear, setting the date of the hearing for December 23, 2003, was mailed to the Applicant on October 7. Under the Board's Rules, it was deemed to be received on October 14, 2003 - the same day that counsel was retained. By letter dated October 22, 2003, counsel requested that a change of date be granted. In the request, counsel set out the reason for his unavailability (pre-arranged Christmas vacation), other dates before and after when he would be available and the reasons for the delay in his being retained.
[4] The Board denied the request without, it appears, considering all of the factors set out in Rule 48(2) of the Immigration and Refugee Rules. In the notes on file on the refusal, the Board stated simply:
Le demandeur a retenu les services de l'avocat après avoir reçu [sic] son avis de convocation. Il se doit de s'assurer les services d'un avocat disponible a [sic] la date de l'audience prévue - L'audience se tiendra comme prévue à la date fixée soit le 23-12-03.
[5] Apparently accepting the decision of the Board, the Applicant retained new counsel. In the two months leading up to the hearing, the new counsel wrote a number of letters to the Board. She appeared at the hearing on the Applicant's behalf. At no time did the new counsel complain of the refusal of the adjournment. Further, before me, the Applicant did not submit that the hearing itself was unfair, that the new counsel was unable to prepare adequately or that she was incompetent.
[6] In the light of these circumstances, I find it curious that the Applicant now complains of an alleged breach of natural justice. While it appears that the Board failed to follow its own rules on dealing with adjournment requests, in this case, any error is immaterial.
Issue #2: Did the Board err in its adverse credibility determination by relying on erroneous findings made in a perverse or capricious manner?
[7] The Applicant submits that the Board made a number of errors in its decision. It is well established that findings of fact, especially credibility, go to the heart of the Board's jurisdiction and thus must be found patently unreasonable to be overturned by this Court. With this standard in mind, I will turn to each of the alleged errors.
(a) Failure to provide clear and unmistakable credibility findings
[8] The Board found the Applicant had failed to produce "credible and trustworthy evidence in support of his claim". Before analyzing the specific components of the claim, the Board stated that:
Given the many implausibilities and inconsistencies in the claimant's testimony and considering the documentary evidence, the Panel disregarded his testimony in its entirety, deeming it to lack all credibility. [emphasis added]
[9] The use of this language is the root of the first error alleged by the Applicant. Specifically, the Applicant submits that this statement is inconsistent with later statements in the reasons where the Board actually accepts certain of his testimony, such as the fact that the Applicant's father started a newspaper in 2000 and that the Applicant worked for the newspaper for a few months. This contradiction, the Applicant argues, does not satisfy the requirement that credibility findings must be "clear and unmistakable" (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (F.C.A.)). The Applicant submits that, given this contradiction, it is impossible to discern what was accepted by the Board.
[10] I do not agree that this is an error. At most, the words cited above are an exaggeration of the situation. When I read the decision as a whole, it is very clear what evidence was accepted by the Board. For example, the Board accepted that the father owned a newspaper and that the Applicant worked for his father and so stated in clear and unmistakable terms. Where evidence was rejected, that also was done in clear terms. At the end of reading this decision, there is no question in my mind about the basis of the Board's decision. The early words were poorly chosen but not fatal to the decision or even material.
(b) Failure to provide signed newspaper article
[11] The Board noted that, although it accepted that the Applicant may have worked as a cultural and international reporter, he was unable to produce any copies of articles he wrote. The Applicant submits that this finding was perverse since the Board accepted that he worked for the newspaper.
[12] While the Board's comment on the lack of signed articles may be odd, absolutely nothing turned on the comment. It appears to be a statement that was made by the Board to impugn the overall credibility of the Applicant or to assess the subjective fear of the Applicant. Whatever its purpose, it is not an incorrect statement of the evidence before the Board; the Applicant did not produce signed copies of any articles.
(c) Dates of newspaper publication and registration
[13] The basis of the claim was a newspaper, Punto Final, published by the father. The Board noted the inconsistencies of the Applicant's testimony regarding the dates of publication of the newspaper. The Applicant's testimony was initially that it started publishing in January 2000 and closed its doors at the end of 2000. The Board noted, however, the contradicting evidence that the newspaper was registered on March 30, 2001, at least three months after its closure. The Applicant submits that the Board erred; that the registration was only of the logo. I do not believe the Board erred. The Applicant himself, when questioned on the dates, referred to March 30 as the date of registration of the newspaper.
[14] The Board gave no probative value to a document submitted by the Applicant that he alleged was an article published in 2001. However, as noted by the Board this was "an undated copy of a partial front page" of the newspaper. Given the lack of date, it was open to the Board to reject this document as evidence that the newspaper continued beyond the end of 2000. The Applicant submits that he had the missing pages and could have given them to the Board if he had been made aware of the deficiency. The onus is on the Applicant to support his claim; the Board was under no obligation, in this case, to follow up on the document (Selliah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1134, at paras. 21- 22).
(d) Publication of books by father
[15] The Applicant's claim relates to the danger he faced because of the activities of his father against the Fujimori government. The Applicant alleged that, in addition to the newspaper, his father also wrote an anti-government book. The Applicant submitted a page from the newspaper that advertised the first installment of The Dark Face of Power. This, in the Applicant's submission, is evidence that at least part of the book had been published. He also testified that his father was working on another book not yet published. The Applicant argues that the Board misconstrued this evidence when it states that "The panel fails to see how a book not yet published would cause so much trouble."
[16] The testimony on this subject is far from as clear as the Applicant asserts. The various comments by the Applicant are confusing. The notice regarding the book's first installment could either mean that this part of the book has been published and is available (as the Applicant now submits) or that the first installment is coming (as the Board understood). There is nothing unreasonable in the Board's assessment of the evidence regarding the book.
(e) Father remaining in Peru
[17] The Board, in its decision, noted that the Applicant's father and his partner remain in Peru and are able to continue their work. While not expressly stating so, it appears that the Board drew a negative inference from this fact. The Applicant argues that the Board failed to have regard for the evidence that showed that the father has been moving from place to place, that there was an attempt on his life in December 2003, and that there were reasons why his father was unwilling to leave Peru.
[18] In my view, none of this evidence changes the fact that the Applicant's father, whose actions are at the heart of the fear alleged by the Applicant, has not sought refuge outside Peru. Regardless of the reasons for staying, the failure to leave is another inconsistency in the Applicant's story.
(f) Failure to claim in United States
[19] The Applicant travelled to the United States for two weeks in February 2000 as a tourist. This was apparently before the acts of persecution commenced. After the alleged acts of persecution began, he went again to the USA in May 2000 where he remained until coming to Canada in June 2003. At first, he claimed he had status in the USA. His testimony was that he attempted to claim refugee status in the United States, but that his claim was never filed by the lawyer he had retained. In its decision, the Board described the alleged facts that the Applicant's father sent him to the United States "for two weeks from May 200 (sic) to December 2000", that he returned to the USA in January 2001. In its analysis, the Board stated the following:
The claimant left his country in May 2000, lived, worked and studied in the United States until June 2003 without claiming refugee protection and although he was in the country illegally since May 2001.
The claimant explained that he did not ask for refugee protection in the United States because following the tragedy of September 11, 2001 it was became (sic) more difficult to obtain refugee status and in 2003, it became even harder for someone whose visa had expired.
. . .
In this matter, the Court of Appeal has stated on many occasions the obligations of a claimant who leaves his country because he fears for his life and arrives in a country signatory of the Geneva Convention. [emphasis added]
[20] The Applicant first argues that the Board's error with respect to the dates is "egregious". While I note this error in the "alleged facts" part of the decision, I also see that the Board correctly set out the date on which he came to the United States for the final and relevant time. Any error with respect to the earlier two-week visit would have been material only if the Board found that the Applicant had reavailed himself of Peru; other than the slip in stating the dates of his visit, there is no mention of this earlier trip by the Board.
[21] In its decision, the Board did not mention the alleged refugee claim that was initiated but not completed by the Applicant's lawyer in the United States. Generally speaking, a delay in claiming asylum at the first opportunity points to a lack of subjective fear of persecution. In spite of this, an attempted claim could possibly counter the negative inference that is drawn when a claimant fails to claim refugee protection where he first lands. In this case, however, the testimony of the Applicant was that he knew of his illegal status in the country from the end of September 2001 - some two years before he left the United States - and did nothing further to regularize his status. His explanations of the two-year delay in coming to Canada were not explained to the satisfaction of the Board. Although the Applicant claims that he gave reasonable explanations for failing to claim in the United States, it was not unreasonable for the Board, based on a two-year delay, to add this negative inference to the long list of "implausibilities and inconsistencies" in the Applicant's story. In these circumstances, failure to mention the attempted refugee claim does not constitute a reviewable error.
[22] Finally, the Applicant clings to the use of the word "obligations" used by the Board in the context of its discussion of this issue. The Applicant asserts that this is an "error of law" since a failure to claim refugee status cannot be a determinative factor; that neither the applicable case law nor the Refugee Convention states that a claimant must claim in a safe third country (Mendez v. Canada (Minister of Citizenship and Immigration) 2005 FC 75; El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 185 (FCTD); Ilyas v. Canada (Minister of Citizenship and Immigration), 2004 FC 1270).
[23] In my view, the Applicant has read the word "obligations" without regard to the decision as a whole. The Board, in its decision, correctly and carefully described the jurisprudence related to this subject (including, for example, Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (FCA); Skretyuk v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 783 (FCTD)). While a failure to claim elsewhere cannot be a determinative factor, it can certainly be used to add to the overall assessment of the claimant's credibility and lack of subjective fear. That is what was done here; there is no error.
Summary on Issue #2
[24] Having reviewed the record, the decision and the submissions of the Applicant, I conclude that the Board's conclusion on the Applicant's overall lack of credibility was not patently unreasonable. The only "error" was an immaterial mix up of dates in the earlier part of the decision. Not only can each of the alleged errors by the Board be dismissed, but the decision, when read as a whole, leads logically to the lack of credibility finding. Put simply, due to the numerous implausibilities and inconsistencies, the Applicant was unable to weave together a story that met the test for claiming protection.
Issue #3: Was the finding of adequate state protection unreasonable?
[25] The Board, as an alternative finding, concluded that state protection was available. The Applicant disputes this conclusion. Given my conclusion that the Board did not err in its finding of credibility, the finding of lack of credibility is sufficient to dispose of the Applicant's claim and this application. There is no need to explore the Board's finding on state protection. Nevertheless, I would comment that the arguments of the Applicant on this issue are little more than an attack on the weighing of evidence carried out by the Board. It would not be appropriate for this Court to intervene. See for example Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, at para. 11.
CONCLUSION
[26] For these reasons, the application will be dismissed. Neither party proposed a question for certification. No questions will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed; and,
2. No question of general importance is certified.
"Judith A. Snider"
_____________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3353-04
STYLE OF CAUSE: JUAN CARLOS MANUEL TUDELA-FLORES v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: April 6, 2005
APPEARANCES:
Mr. Douglas Lehrer For Applicant
Ms. Angela Marinos For Respondent
SOLICITORS OF RECORD:
Vander Vennen Lehrer FOR APPLICANT
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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