Date: 20000907
Docket: IMM-3545-99
OTTAWA, ONTARIO, SEPTEMBER 7, 2000
Before: J.E. DUBÉ J.
Between:
Julio Cesar GOCHEZ
Lorena Esperanza CARCAMO SANTOS
Blanca Leticia CARCAMO MARTINEZ
Carlos Mauricio CARCAMO MARTINEZ
Claudia Lorena CARCAMO MARTINEZ
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
This matter is referred back to a Refugee Division consisting of different members.
Judge
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000907
Docket: IMM-3545-99
Between:
Julio Cesar GOCHEZ
Lorena Esperanza CARCAMO SANTOS
Blanca Leticia CARCAMO MARTINEZ
Carlos Mauricio CARCAMO MARTINEZ
Claudia Lorena CARCAMO MARTINEZ
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
DUBÉ J.
[1] This application for judicial review is from a decision by the Refugee Division of the Immigration Board ("the Refugee Division") on June 17, 1999 that the plaintiffs are not Convention refugees.
[2] The principal plaintiff, his wife and their three children are citizens of El Salvador. He alleged that he worked for a private business as a [TRANSLATION] "secretary" from August 1990, after witnessing a murder perpetrated by four police officers on May 5, 1998, receiving threatening calls, and on June 15, 1998 he and his wife were attacked by a group of police officers or former officers.
[3] The Refugee Division rejected his refugee application on the ground that the plaintiff was not credible. It based its decision on two documents (P-4 and P-5). The first document came from his employer and read as follows, when translated from Spanish to French:
[TRANSLATION]
It is hereby certified that Julio Cesar Gochez worked at "Tramitaciones Ramos" as a residential client visitor from August 8, 1990 to June 18, 1998.
Issued at San Salvador on January 11, 1999
[4] The Refugee Division saw a contradiction between the position "residential client visitor" and that of "secretary" as reported by the plaintiff in his PIF. When this apparent contradiction was put to him the plaintiff explained to the panel, as indicated by the transcript, that his work involved obtaining driving licences, filing documents and getting information on clients. To do this, he spent about 70% of his time at the office and 30% outside meeting clients.
[5] The plaintiff stated that if he had obtained the letter from his employer directly himself he would have insisted that his duties be described as "secretary". The letter in question was obtained through his brother in El Salvador.
[6] In my opinion, this apparent contradiction is not sufficient to justify a finding that he lacked credibility. There is no question that the plaintiff did work for his employer for eight years. The exact description of his employment is not central to his refugee application.
[7] The second document noted by the Refugee Division was the medical certificate obtained by the plaintiff from his physician the day following the attack. The document, translated from Spanish to French, reads as follows:
[TRANSLATION]
The undersigned, a general physician and member of the College of Physicians, No. 5330, certifies that the medical file of JULIO CESAR GOCHEZ contains a consultation on July 15, 1998 on account of: flogging with blunt objects, causing a "politraumatismo" (traumatism) to the face, front and rear thorax, abdomen and upper and lower limbs, exhibiting ecchymoses and lacerations requiring simple daily care, and inability to work for eight days. Issued at San Salvador on February 2, 1999
[8] The panel accused the plaintiff of lacking credibility as he stated in his PIF that the assault took place on June 15, 1999 and that he saw the physician the following day, on June 16, 1998. However, as can be seen in the aforesaid certificate, the date of the consultation was July 15, 1998. At the hearing the plaintiff maintained that this was an error made by the physician. Additionally, the description of the flogging in the certificate corresponded to the injury inflicted on the plaintiff in his attack as reported in the PIF. This is indicated by the following passage:
[TRANSLATION]
I could offer no resistance. They took me to a very remote but dark place, they tied my hands, they made me kneel and with a revolver at my head they began hitting me in my stomach, chest and on my face, I rolled onto the ground, I do not know how many times, and they kicked me as if I was a balloon. I was bleeding from my mouth and nose, I begged them to stop hitting me, one of them said "shut up, son of a bitch" and they lifted me and put me on my knees again, telling me it was not a game.
[9] The Refugee Division concluded that the attack had not taken place. Of course, it is not the function of a judge sitting in judicial review to draw his own conclusions on credibility, unless those of a panel are unreasonable. In the case at bar, the two errors mentioned by the Refugee Division cannot necessarily be attributed to the plaintiff. The physician could have made a mistake with the date and the person in the employer's office could have described the plaintiff's job in his own way. There is no indication of bad faith on the plaintiff's part, in that he had nothing to gain by changing the date of his attack or the description of the duties that he performed.
[10] In the circumstances, I feel it is fair and equitable to refer the matter back to a Refugee Division of different members for re-hearing. In the meantime, the plaintiff will have an opportunity to get the aforesaid documents corrected. The new panel will be able to focus its attention on matters fundamental to the original claim, and not on apparent contradictions of an inconsequential nature.
[11] Both counsel and the Court agreed that there is no question of general importance to be certified here.
Judge
OTTAWA, Ontario
September 7, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3545-99
STYLE OF CAUSE: JULIO CESAR GOCHEZ et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 31, 2000
REASONS FOR ORDER BY: DUBÉ J.
DATED: SEPTEMBER 7, 2000
APPEARANCES:
JORGE COLASURDO FOR THE APPLICANT
LISA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
JORGE COLASURDO FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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