Date: 20040316
Docket: IMM-4769-02
Citation: 2004 FC 381
Ottawa, Ontario, March 16, 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
LUIS ALFONSO ANDRADE ABSALON
MARIANA VALENZUELA SOBRINO
Applicants
and
THE DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This particular case raises a core issue of concern to decision-makers. The issue rests on credibility and its analytical scope: when (until what point, with what degree of precision, and on how many aspects of a subject) should a specialized tribunal deem to have enough on which to decide on credibility? When it has been demonstrated that the core of the claim is understood in the broad sense, it is then that expectations regarding credibility will have been met and at such a point, the Court must rely on (defer to) the knowledge of the specialized administrative tribunal.
Judgments below
[2] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated September 17, 2002, that the applicants do not satisfy the Convention requirements of sections 96 and 97 of the Immigration and Refugee Protection Act.
[3] Luis Alfonso Andrade Absalon (Mr. Andrade Absalon) and Mariana Valenzuela Sobrino (Ms. Valenzuela Sobrino) are asking the Court to set aside the Board's decision that the applicants are not Convention refugees.
[4] The respondent is asking that the application for judicial review be dismissed.
ALLEGATIONS (FACTS)
[5] Mr. Andrade Absalon and Ms. Valenzuela Sobrino are married and they are Mexican citizens. They claimed refugee status alleging a reasonable fear of persecution because they were persecuted for perceived political opinion and the female claimant's membership in a social group for women victims of violence. Mr. Andrade Absalon and Ms. Valenzuela Sobrino also claimed that they were persons in need of protection.
[6] Mr. Andrade Absalon and Ms. Valenzuela Sobrino allege that Mr. Andrade Absalon and friends created a charitable organization, the "Beverly Hills Charity Group". They organized parties that took place once a month. The profits of the parties were given to the Red Cross of Huixtla. In June 1995, Mr. Andrade Absalon became president of the organization and, with the salary that he earned, he was able to support his family.
[7] The organization was so successful and made such large profits that it was able to help other communities, including aboriginal people from San Cristobal. Mr. Andrade Absalon alleges that in August 1997 he met "Comandante Maria" of the Zapatista group. She thanked him for having helped the aboriginal people. She also asked him to help the Zapatistas by recruiting new members.
[8] In October 1997, he met the leader of the Zapatistas, "Comandante Marcos". Comandante Marcos spoke for six hours, and asked him to help the Zapatistas. Mr. Andrade Absalon told him that he wanted to complete university before becoming a member of the group.
[9] In June 1998, Mr. Andrade Absalon went to university. He resigned from his position as president of the "Beverly Hills Charity Group" and began to work at a pizzeria as an assistant manager.
[10] During his studies, Mr. Andrade Absalon was an acquaintance of Julio Salazar. Julio Salazar was the nephew of Pablo Salazar, a candidate for governor of Chiapas in the 2000 election. Then, Pablo Salazar won the election. After he had won, Julio Salazar told Mr. Andrade Absalon that his uncle could give him a job but, before he could do that, Mr. Andrade Absalon would have to become a member of his political party, the National Action Party (PAN). Mr. Andrade Absalon became a member of the PAN and was offered the job of Director of the Treasury Department. He accepted the position, and was to begin his work in February 2001.
[11] On January 18, Mr. Andrade Absalon worked later than usual, until the early morning hours of January 19 to be precise. On January 19, Ms. Valenzuela Sobrino called the pizzeria, saying that three men belonging to the Zapatistas, wearing masks, had broken into the house. They asked where Mr. Andrade Absalon was, they threatened to kill Mr. Andrade Absalon, and they physically and sexually assaulted Ms. Valenzuela Sobrino. She asked Mr. Andrade Absalon not to file a report with the police. Mr. Andrade Absalon went home, and then they went to the home of Ms. Valenzuela Sobrino's father.
[12] They decided to flee Mexico. They stayed at the home of Mr. Andrade Absalon's uncle and, immediately after receiving their passports, they left Mexico.
[13] They arrived in Canada on February 3, 2001, and claimed Convention refugee status on May 30, 2001.
BOARD'S DECISION
[14] The Board decided that Mr. Andrade Absalon and Ms. Valenzuela Sobrino were not credible. It noticed significant differences between the notes filed by Citizenship and Immigration Canada (CIC) and the applicants' PIF. Mr. Andrade Absalon and Ms. Valenzuela Sobrino explained the inconsistencies, but the Board did not find the explanation credible.
[15] The Board also noted that Mr. Andrade Absalon should have produced a PAN membership card and drew an adverse inference from the fact that he did not produce it.
[16] The Board found that parts of Mr. Andrade Absalon's testimony were implausible.
[17] The Board found that Mr. Andrade Absalon and Ms. Valenzuela Sobrino did not seek the help of the police. The Board then determined that they should have requested help from the police, because the Mexican State is able to protect its citizens.
[18] The Board drew an adverse inference from the fact that Mr. Andrade Absalon and Ms. Valenzuela Sobrino did not claim refugee status until almost three months after they arrived in Canada.
[19] The Board therefore dismissed the claim of Mr. Andrade Absalon and Ms. Valenzuela Sobrino.
ISSUES
[20] Is Mr. Andrade Absalon's affidavit admissible?
[21] Did the Board err in determining that Mr. Andrade Absalon and Ms. Valenzuela Sobrino were not credible?
[22] Did the Board err by failing to consider the evidence?
[23] Did the Board err when it did not give Mr. Andrade Absalon the opportunity to obtain his PAN membership card?
ANALYSIS
Is Mr. Andrade Absalon's affidavit admissible?
[24] Mr. Andrade Absalon's affidavit includes not only facts, but also interpretations of the Board's decision as well as legal arguments. As affidavits can include only facts, the better part of the affidavit is not admissible.
[25] It is important to emphasize the effect of subsection 81(1) of the Rules. The allegations must be made in the memorandum, and not in the affidavits.
Did the Board err in determining that Mr. Andrade Absalon and Ms. Valenzuela Sobrino were not credible?
[26] Mr. Andrade Absalon and Ms. Valenzuela Sobrino claim that the Board did not refer to the documentary evidence which contradicted the applicants's testimony and disregarded the principle of the presumption of the applicants' truthfulness.
[27] In this case, the Board gave several examples of inconsistencies and implausibilities which rebutted the presumption of truthfulness. For example, it noted the inconsistencies between the CIC's notes and the PIF of Mr. Andrade Absalon and Ms. Valenzuela Sobrino. Also, it found it implausible that Mr. Andrade Absalon was not able to get his PAN membership card in order to produce it as evidence that he was a member of the party.
[28] Moreover, and contrary to the applicants' claims, the Board referred to the documentary evidence in finding that Mr. Andrade Absalon and Ms. Valenzuela Sobrino were not credible. Mr. Andrade Absalon testified that there were no military roadblocks the day that he met Comandante Marcos, but the Board remarked that during this period, there was an increased military presence in Chiapas. The Board also noted that one report states that there is no evidence that the Zapatistas were taking revenge on people who did not support them or forcing individuals to become members of the group.
[29] The applicants ask the Court to substitute its findings for those of the Board. But the caselaw is clear that the credibility of a witness is an issue which is within the jurisdiction of the tribunal. Given the Board's expertise, the Court will not intervene unless the applicant demonstrates that the findings are patently unreasonable. In this case, the applicants failed to demonstrate it.
[30] The problem with this determination is that Mr. Andrade Absalon did not testify that the family feared reprisals. When the Board asked why he was looking for his passport immediately after his wife was assaulted, he answered:
What happened is that her father [Ms. Valenzuela Sobrino's father] was afraid that they would find us and then attack us both and kill us both. So then, you know, he pressured me and he said that the most logical step for us was to leave the country as soon as possible.
Ms. Valenzuela Sobrino's father was afraid that the Zapatistas would attack Mr. Andrade Absalon and Ms. Valenzuela Sobrino, not himself. The Board could draw an adverse inference about the fact that claimants delayed their departure, it is perfectly reasonable to find that claimants would do everything to leave immediately when they were being persecuted.
Did the Board err by failing to consider the evidence?
[31] The Board need not mention all of the evidence before it, but it must do so when the evidence is relevant.
Did the Board err when it did not give Mr. Andrade Absalon the opportunity to obtain his PAN membership card?
[32] Mr. Andrade Absalon and Ms. Valenzuela Sobrino claim that the Board should have adjourned the hearing to give Mr. Andrade Absalon the opportunity to obtain his PAN membership card.
[33] The Court does not agree with this submission. In a very similar case, Gibson J. held:
An applicant before the CRDD, represented by counsel as was the case here, has an obligation to come before the CRDD prepared to fully make out his or her case. It should have been apparent to the applicant in this matter, if he had been fully prepared for his hearing, that there were significant omissions in his personal information form. An opportunity to rectify those omissions was provided at the opening of the hearing. It was not availed of. . . .
It is possible to say the same thing about this case. It was not the Board's responsibility to caution Mr. Andrade Absalon and Ms. Valenzuela Sobrino to obtain evidence that they needed to produce and it did not err.
CONCLUSION
[34] This application for judicial review is dismissed. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question will be certified.
"Michel M.J. Shore"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4769-02
STYLE OF CAUSE: LUIS ALFONSO ANDRADE ABSALON
MARIANA VALENZUELA SOBRINO
v.
THE DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MARCH 15, 2004
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE SHORE
AND ORDER:
DATED: MARCH 16, 2004
APPEARANCES:
Clarel Midouin FOR THE APPLICANTS
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Clarel Midouin Law Office FOR THE APPLICANTS
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
Application Record, Application for Leave and for Judicial Review, Tab 1, page 2.
Respondent's Memorandum of Argument, paragraph 13.
Application Record, Reasons for the Decision, Tab 3, page 6.
Application Record, Affidavit of Mr. Andrade Absalon dated November 7, 2002, Tab 4, page 13, paragraph 14.
Application Record, according to the Personal Information Form (PIF) signed by Mr. Andrade Absalon, Tab 6-A, page 34, paragraphs 26-29.
Application Record, Reasons for the Decision, Tab 3, page 7.
Application Record, Affidavit of Mr. Andrade Absalon, Tab 4, page 12, paragraph 5, page 13, paragraphs 12- 14, page 14, paragraph 19.
Federal Court Rules, 1998, SOR/98-106, subsection 81(1) (the Rules). Subsection 81(1) reads as follows:
81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui.
Application Record, Applicant's Memorandum of Fact and Law, Tab 5, page 27, paragraph 15.
Application Record, Reasons for the Decision, Tab 3, page 7.
Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), paragraph 4.
Supra; Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (QL), paragraph 3.
Certified Tribunal Record, Transcript of the Hearing, page 550.
Dong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 486 (QL), paragraph 14.
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