Date: 19971106
Docket: IMM-648-96
BETWEEN:
YOSELINE DEL CARMEN APARICIO CANIZALEZ and
KELLYN ALFREDO ALAVAREZ APARICIO,
(a minor)
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (C.R.D.D.) of the Immigration and Refugee Board (the "Board") dated December 20, 1990. In that decision, the Board determined that the applicants herein are not Convention refugees.
THE FACTS
[2] Yoseline Canizalez is the adult applicant. Her son Kellyn Aparicio is the minor applicant. Both claimants are citizens of Venezuela. Their claim to a well-founded fear of persecution is based on political opinion and membership in a particular social group. The adult applicant testified that she commenced a common law relationship with her spouse in 1989. In that same year she gave birth to her son, the minor applicant. In June of 1992 the adult applicant's spouse left Venezuela. Her evidence was that, subsequent to his departure, she learned that he was fleeing police persecution. She said that she and her son did not accompany her spouse because of insufficient funds. After his departure she became active in a political group known as Movimiemto al Socialismo (M.A.S.). She joined this organization because she did not approve of the abuses being practiced by the government of Venezuela. On September 10, 1995, while she was attending a M.A.S. meeting, the police arrested her as well as the other participants. The police molested her and on the first night in her cell, three officers raped her. She was released the next day. At the time of release, the officers threatened her against revealing the molestation and rape incidents. Upon her return home, she took tranquilizers and did not leave her house. Within ten days she left Venezuela. She didn't tell her spouse of these events because she was ashamed. It was only after her spouse's refugee claim was refused that she realized that it would be advisable that she tell her story to the Board.
THE BOARD'S DECISION
[3] The Board found that material aspects of the adult applicant's claim were lacking in credibility. It found vagueness and inconsistency in her testimony. Her initial testimony that she did not know the consequences of her husband's political involvement is contradicted by her further testimony that she knew of his arrest and tried to persuade him that she was strong and unafraid. The Board found it implausible that had she been aware of his arrest, she would be unaware that her own subsequent political involvement would entail risk to herself and her son.
[4] The Board then proceeded to review the documentary evidence. The adult applicant was questioned concerning her knowledge of M.A.S. She knew it was a left wing organization. She was unable to provide any detailed information relevant to M.A.S. The Board found that her general lack of knowledge concerning M.A.S. was inconsistent with her level of involvement. The Board did not accept her evidence as to her involvement with M.A.S. As a result, they concluded that she did not risk persecution upon her return to Venezuela. The Board also considered a psychological report dated September 13, 1994 to the effect that the applicant was suffering from post traumatic stress disorder (P.T.S.D.). The medical report concluded that this disorder was a direct result of the adult applicant's experiences in Venezuela. The Board concluded that the adult applicant would not fear persecution because of her husband's activities nor because she was a woman living in Venezuela. They based this conclusion on documentary evidence to the effect that while women in detention by the authorities are at risk, such jeopardy does not extend to women generally.
ISSUES
| 1. Did the Board err in its consideration of the expert psychiatric evidence before it? |
| 2. Did the Board err in making adverse findings of credibility with respect to the testimony given by the adult applicant? |
| 3. Did the Board err in applying the nexus component of the Convention refugee definition? |
ANALYSIS
1. Expert Evidence
[5] Counsel for the applicants submits that the Board failed to have due regard to the expert evidence concerning the adult applicant's (P.T.S.D.). I do not agree. The Board expressly stated that it considered the psychological report. It found that the adult applicant's P.T.S.D. is consistent with her evidence but is not conclusive. It did not question the P.T.S.D. diagnosis. However, because the adult applicant's testimony was not found to be credible, the Board concluded that the adult applicant is not suffering from this disorder because of persecution for a Convention refugee ground.
[6] In my view, such a conclusion was reasonably open to the Board. The Board relied on the decision of the Trial Division in Cabrera v. M.E.I.1 where Rothstein J. stated "...a psychiatrist's letter does not, of itself, prove that an applicant meets the test of Convention refugee. At most, in this case, it is consistent with the applicant's story. But it is the factual evidence that must be relied upon to prove the qualifications of Convention refugee status".
[7] In this case, the Board accepted and reviewed the expert evidence, but because it concluded that material aspects of the adult applicant's claim were not credible, it was unable to agree that she was suffering from P.T.S.D. because of persecution in Venezuela. Having considered the totality of the evidence, I agree with this conclusion.2
CREDIBILITY
[8] The adult applicant submits that the Board erred in concluding that she was not a credible witness and that her testimony was implausible. Counsel relies on observations by the refugee hearing officer (R.H.O.) at the C.R.D.D. hearing. The R.H.O. found the adult applicant to be a very credible person, whose testimony was plausible. The difficulty with this submission is that while the R.H.O. has a duty to assist the Refugee Division, the Refugee Division remains the primary finder of fact. A reviewing court should refuse to interfere with the Board's decisions which assess credibility or plausibility provided those decisions are properly founded on evidence, do not ignore evidence or are supported by the evidence.3
[9] Similarly, the Federal Court of Appel in Aguebor v. M.E.I.,4 concluded that a Board of this nature is in a better position than a reviewing judge to made determinations of implausibility.
[10] In my view, this is not a case where the Court would be entitled to interfere with the credibility findings of the Board. The Board made adverse findings of credibility and implausibility in clear and persuasive language. The fact that the R.H.O. found the applicant to be credible does not affect the Board's findings. The Board is the finder of fact and it is the decision of the Board which is the subject matter of this application for judicial review.
NEXUS
[11] The applicant submits that the Board erred in not finding a nexus to the definition of Convention refugee.
[12] However, the Board did consider whether the adult applicant could base her claim to persecution on gender. The Board reviewed the documentary evidence which establishes that women in detention are at a serious risk of persecution in Venezuela. Since the Board found that the adult applicant was not in detention and was not at risk of being detained, its finding of lack of persecution on the basis of gender was reasonably open to it.
CONCLUSION
[13] For all the foregoing reasons, I conclude that the within application for judicial review should be dismissed.
CERTIFICATION
[14] Neither counsel requested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification. Accordingly, no questions are certified.
Darrel V. Heald Deputy Judge
OTTAWA, ONTARIO
November 6, 1997
__________________
1 A-750-92, November 26, 1993, (T.D.).
2 To the same effect see Boateng v. M.E.I., A-1027-92, March 31, 1995 (T.D.).
3 Compare Ismaeili v. M.C.I., IMM-2008-94, April 11, 1994 (T.D.).
4 (1993) 160 N.R. 313 (F.C.A.).
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