Date: 20000824
Docket: IMM-3615-99
Between :
Yuri Nicolas UGAZ FERIA
MARTIN Augusto UGAZ FERIA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 21, 1999, determining that they are not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] Martin Augusto and his brother Yuri Nicolas, citizens of Peru, arrived in Canada on December 23, 1994. They claim a well-founded fear of persecution on the grounds of imputed political opinion, that is, because they are suspected of supporting the Shining Path.
[3] The Board found the applicants not to be credible as a result of the following contradictions and omissions in their oral and documentary evidence:
| - The Board disbelieved the applicants' claim to have lost their passports because when questioned about the circumstances of the loss, Martin Augusto said that he had a passport, but it was no longer valid. |
| - Yuri Nicolas did not mention in his Personal Information Form (PIF) that the police confiscated his identity documents during their interrogation. |
| - The applicants failed to establish their identity beyond arranging to have copies of certain documents, such as medical certificates and birth certificates, sent to them by their family. According to the Board, copies of birth certificates are "relatively easy to forge". The Board also cites Exhibit A-14, which states that Peruvian nationals abroad are entitled to a passport even if they have a criminal background or are sought by Peruvian law enforcement institutions. The Board gave little or no weight to identity documents obtained by the applicants from the Quebec government, apparently without their having had to identify themselves. |
| - The Board gave no weight to the medical certificates and police report because of their homemade look. The medical certificates are also identical, except with respect to the injuries suffered. The Board found it improbable that the brothers would have been discharged on the same day. |
| - The applicants gave the number of their father's election booklet as 4128745. However, on the copy of the birth certificate of their brother, whose refugee claim is being processed separately, the number is given as 1095747. On the statement of information issued by the police in San Borja, the number is given as 25646138. |
| - When the Board asked Martin Augusto why the police might persecute the brothers now, his answer, "that the police act like savages and treat their victims like animals, with no compassion, and that it was not necessary to commit a crime for them to cause you to disappear", did not really answer the question. |
| - The panel found the applicants' account of the death threats implausible because their assailants could have killed them at any time during their abduction. |
| - The Board found it improbable that the applicants would be persecuted both by the police and by terrorists. |
| - The Board found that in order to make his testimony consistent, Martin Augusto adjusted his answers to the questions asked. |
[4] According to the applicants, the Board drew unreasonable inferences from the evidence in determining that they were not credible. In my opinion, the applicants' arguments on this point are not convincing. In particular, the fact that "the Board could have drawn positive inferences from the documents and the testimony yet it chose to draw negative inferences" is not, as alleged by the applicants, an error of law. The Board based its finding of non-credibility on implausibilities in the applicants' evidence and contradictions between their PIFs and oral testimony. Generally, I find that the inferences drawn by the Board, which is a specialized tribunal, were reasonable and sufficient to allow it to conclude as it did (see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316 (F.C.A.)).
[5] With respect to the applicants' allegation that the Board disregarded some of the evidence before it, it is well established that unless the contrary is shown, the Board is assumed to have considered all the evidence presented to it. In general, the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 at 318 (F.C.A.)). In the case at bar, the applicants have not convinced me that any evidence was ignored by the Board. Certainly, the Board cannot be accused of having disregarded the letter from the Peruvian consulate, which is dated August 2, 1999, more than two months after the date of its decision.
[6] Finally, with respect to the applicants' allegation of bias on the part of the Board members, I do not consider that the passages referred to by the applicants reveal such bias. Rather, I think that the passages singled out from the transcript of the hearing show that the Board was diligent in its duty to alert the applicants to its concerns regarding their credibility. The Board was entitled to question the applicants about their lack of photo identification and their identity. Contrary to what the applicants argue, this line of questioning is neither irrelevant nor irregular. The fact the Board disbelieved the applicants does not necessarily mean that the Board was biased against them. In my opinion, the applicants failed to adduce any evidence which would lead an informed person, viewing the matter realistically and practically - and having thought the matter through - to conclude that the Board decided unfairly (see [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394). Furthermore, I must draw a negative inference from the fact that neither the applicants nor their counsel raised the issue of bias at the hearing before the Board (see, for example, In Re Human Rights Tribunal and Atomic Energy Canada, [1986] 1 F.C. 103 at 113 and Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 at 311 (F.C.A.)).
[7] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
August 24, 2000
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