Date: 20040702
Docket: IMM-3174-03
Citation: 2004 FC 926
BETWEEN:
Gloria Celeste ALVEZ OLIVERA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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 April 7, 2003, that the applicant is not a Convention refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Gloria Celeste Alvez Olivera (the applicant) is a citizen of Uruguay who alleges that she has a well-founded fear of persecution in that country because of her political opinion and her membership in a particular social group, namely that of female victims of sexual abuse. The applicant also alleges that she is a person in need of protection.
[3] According to the IRB, the applicant's allegations were not credible because they were peppered with omissions and implausibilities.
[4] In matters of credibility, it is not the place of this Court to substitute its decision for that of the IRB unless the applicant can establish that the IRB's decision is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The IRB is a specialized tribunal which has the power to assess the plausibility and the credibility of testimony so long as the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its grounds are explained clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[5] In this case, the IRB noted that the applicant stated that she lived without worrying for her safety from 2000 to 2002; however, according to the second version of her story, the applicant felt threatened constantly during those two years. Besides, the IRB pointed out that the report of Dr. Maria Souza, written following an exam which took place on July 15, 2002, is inconsistent with the applicant's allegations: this report does not refer at all to the applicant's rape which allegedly occurred at the end of August 1999, and the applicant's health problems began in March 1999, and not after the rape that she says occurred in August 1999. The IRB determined from this that the applicant's anxiety disorder was not caused by the rape.
[6] Among other things, the IRB criticized the applicant - who alleged that she was threatened in 1999 for participating in the elections as a member of the Frente Amplio (FA) - for not having filed credible evidence to support her claims. On this point, the applicant merely named the dates of the elections and the results since April 25, 1999. Her political involvement was a fundamental element of her claim, it was reasonable for the IRB to draw a negative inference from the fact that she had not filed credible evidence in support of her allegation, especially since she was unable to name the political activities in which she was engaged and which precipitated the alleged threats and rape. The IRB also noted that the applicant did not file any evidence to corroborate her allegations of rape and assault by two men in August 1999. The IRB pointed out that even a medical report of a physician who treated the applicant, between March 1999 and September 2001, does not refer to this rape at all. As a general rule, testimony is presumed to be true unless there are reasons to doubt its truthfulness. Here, the IRB noted many significant inconsistencies in the applicant's story; in my view, the panel's perception that she was not a credible witness could lead to the determination that there was no probative evidence on which the claim could be based (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.)).
[7] The applicant alleges that the IRB's decision was patently unreasonable because it disregarded the evidence filed. It is true that the applicant filed a letter from the Chamber of Senators dated September 6, 2002, confirming her involvement in the activities of the FA. However, this letter amounts to secondary evidence from a source that really did not have any knowledge of the applicant's political activities. As for the psychological report, it cannot support the applicant's allegations since it is based entirely on the applicant's allegations. Further, following the review of Dr. Souza's report, the IRB determined that the applicant's psychological problems existed before the rape incident on which her fear of persecution is based. There is a presumption that all of the evidence was considered by the IRB and the IRB is not bound to refer to all of it in its reasons (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (F.C.A.) (QL)). In this case, the applicant has not persuaded me that the IRB effectively disregarded or arbitrarily dismissed the evidence filed. A review of the reasons of the decision and the transcript of hearing indicates that the panel assessed all of the evidence filed, but did not find that it was probative.
[8] Finally, the IRB found that the applicant stayed in Uruguay for two years after the incident on which her fear of persecution is based. Such a delay in leaving the country where she claims to fear persecution indeed casts a reasonable doubt on the credibility of that fear.
[9] Furthermore, I am not persuaded after reviewing the transcript of the hearing before the IRB, that the IRB's interventions were an affront to procedural fairness.
[10] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
July 2, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3174-03
STYLE OF CAUSE: Gloria Celeste ALVEZ OLIVERA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 22, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: July 2, 2004
APPEARANCES:
Marie José L'Ecuyer FOR THE APPLICANT
Gretchen Timmins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie José L'Ecuyer FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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