IMM-3014-96
BETWEEN:
MARIA OMAIRA DIAZ BERNAEZ,
VICENTE
LEON LOPEZ DIAZ,
CLAUDIA
PATRICIA DIAZ GOMEZ,
JUAN
ARMANDO DIAZ GOMEZ,
OMAIRA
DE JESUS BERNAEZ DE DIAZ,
JUAN
MANUEL DIAZ BERNAEZ,
Applicants,
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS
FOR ORDER
JOYAL J.:
This is an application for
judicial review of a decision of the Refugee Division of the Immigration and
Refugee Board (the "Board") determining that the applicants are not
Convention refugees on the ground that they were not credible. The applicants
are seeking to have that decision set aside.
I. FACTS
There are seven applicants
involved in this matter in total: the principal applicant, Juan Armando Diaz,
his wife Omaira de Jesus Bernaez de Diaz, their minor son Juan Manuel Diaz
Bernaez, their two adult daughters Claudia Patricia Diaz Bernaez and Maria
Omaira Diaz Bernaez, and the latter daughter's minor son Vicente Leon Lopez
Diaz.
The applicants, who are
citizens of Venezuela, are claiming refugee status. They claim to have a
reasonable fear of persecution by reason of the political opinion of the
principal applicant, who is a member of the Causa radicale party ("Causa").
The facts on which the applicants base their claim are set out in the decision
of the Board.
The principal applicant is a
farmer from the Zaraza region, where he operates a farm with the assistance of
his wife and younger son. His two daughters moved away from the family farm
quite some time ago. His older daughter, Maria Omaira, married in 1987 and
divorced five years later, in 1992. Before coming to Canada, she was still
living with her former husband in a house near her parents' farm. Her sister,
Claudia Patricia, is a student at the Central University of Venezuela.
The principal applicant
joined Causa in 1992. He says that he rose quickly through the ranks of
the local section of the party and ultimately held a leadership position as
agricultural secretary for claims in the Zaraza district.
According to the applicant's
testimony, he was not subject to acts of persecution until 1993. In March,
following a political demonstration in which he had made a speech denouncing
the government's tax collection system, he received threatening telephone
calls.
A few months later, he took
part in a farmers' meeting as the representative of the Zaraza agricultural
region. Once again, he spoke to the meeting. Two days later, on October 19,
1993, four men wearing the uniform of the intelligence and prevention services
branch (the "DISIP") came to his home. They beat the principal
applicant and tied up his wife and son. The incident was reported to the
judicial technical police, which allegedly took a statement from the applicant.
The principal applicant and
his wife and son were very frightened and took refuge at the farm of a friend
who lived 150 kilometres from Santa Maria de Ipire in Guarico state. There
they remained for four months. The left in February 1994. It seems that the
national guard had located the applicant and questioned some workers on the
farm about him. They apparently had a summons to serve on him, ordering him to
appear at the DISIP.
The following day, the
applicants fled and went to stay with the principal applicant's brother in
Maturin, in Managos state. There they remained for four months. It was at
this point that the applicant says he again became involved in Causa.
He says that on June 25, 1994, he participated in a demonstration and was
threatened by one of the participants.
The family fled for the last
time to the home of the principal applicant's brother in Caracas. There they
remained until they left for Canada on August 31, 1994. The principal
applicant says that in the meantime he learned that his two daughters and his
grandson had left for Canada on the preceding June 12, after the grandson was
abducted by members of the DISIP. Members of the DISIP allegedly went to the
school claiming to have permission to take the child out. Although his mother
accompanied him to school every day, the principal gave permission for him to
be taken out. The child was allegedly questioned and asked to tell his mother
to abandon her participation in Causa. That applicant describes herself
as a party sympathizer. Claudia Patricia was allegedly struck and tied up on
February 19, 1994, while she was putting up posters supporting the party.
II. DECISION OF THE BOARD
The Board refused to grant
the applicants refugee status since it concluded that their testimony was not
trustworthy. The tribunal made the following finding as to the applicants'
credibility:
[translation]
After
carefully examining all of the evidence, including both the testimony and the
documentary evidence, we have concluded that the claimants are not credible and
that there are implausibilities in the facts recounted.
The tribunal based its
decision on the following points:
(a)the applicants' PIF
contained numerous errors and inaccuracies. For example, the principal
applicant allegedly failed to mention a number of jobs he had held; his
daughter Maria Omaira did not state that she had been separated from her
husband since 1992; she also stated that she had finished school in January
1994, although she was still a student when she left school in February;
(b)the tribunal found
it implausible that the principal applicant would not have tried to find out
whether other speakers had been persecuted after participating in the
demonstrations;
(c)the tribunal
considered it implausible that the national guard would have gone to the
applicants' friend's farm, where they were hiding, when no one knew where they
were, and that the applicant's daughter testified that she had never been
questioned about her father's comings and goings;
(d)the tribunal found
the conduct of the principal applicant, who again got involved in Causa
one month after moving to his brother's home in Maturin, and despite his
precarious situation, to be implausible;
(e)the tribunal found
it implausible that the principle applicant would not have learned of the
incident involving his grandson until he was in Caracas;
(f)the tribunal
considered it implausible that the applicant Maria Omaira's son would be
abducted and that the principal of the school would have allowed the child to
leave.
Because of its conclusion
concerning the credibility of the applicants, the tribunal found that it had
not been established that they had a well-founded fear by reason of the
political opinion of the principal applicant if they were to return to
Venezuela today.
III. ISSUES
According to the applicants,
there is only one question to be disposed of by the Court: did the Board err in
concluding that the applicants' testimony was neither plausible nor
trustworthy?
IV. ARGUMENTS OF THE PARTIES
In response to the decision
of the tribunal, the applicants submitted the following arguments:
(a)the errors and
inaccuracies on which the Board relied are minor and unimportant;
(b)the Board
misinterpreted the testimony of the principal applicant, who said he had been
the only member of his association who was threatened after the demonstration.
He was not aware of whether members of other parties who took part in the
demonstration were threatened;
(c)the applicant is not
in a position to know how the national guard located him on his friend's farm;
(d)it is not
implausible that the applicant would continue his battle against the government
as a member of Causa since he is a very politically committed man;
(e)the applicant was
not informed of the abduction of his grandson because, out of caution, he was
not in contact with his daughters. He did not want to put their lives in
danger;
(f)the principal of the
school would not have refused to comply with the orders of the agents of the
DISIP, which is an imposing and powerful security agency.
In reply, the respondent
submitted the following:
(a)the errors and
omissions found in the PIFs are significant defects which call into question
the applicants' credibility;
(b)the implausibilities
identified by the Board are supported by the evidence and are not patently
unreasonable;
(c)the conduct of the
applicant is inconsistent with the conduct of someone who is in fear for his
life;
(d)the decision of the
Board is fair and reasonable.
V. ANALYSIS
Credibility is a question of
fact which is within the jurisdiction of the Board. As the trier of fact, the
Board is in a better position to assess the evidence than is the reviewing
Court. The Board may thus draw unfavourable conclusions in respect of the
credibility of an individual, provided that it does so in "clear and
unmistakable terms".
The reviewing Court should be hesitant to interfere with the tribunal's
findings of fact unless it made its findings in an erroneous, perverse or
capricious manner or without regard to the material presented to it.
The same standard of
judicial review applies to findings of implausibility.
According to the case law, a tribunal may conclude that an applicant is not
trustworthy on the basis of implausibilities identified in his or her
testimony, as long as the conclusions are not unreasonable. As Décary J.A. of
the Court of Appeal pointed out in Aguebor:
There
is no longer any doubt that the Refugee Division, which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of testimony:
who better than the Refugee Division is in a position to gauge the credibility
of an account and to draw the necessary inferences? As long as the inferences
drawn by the Refugee Division are not so unreasonable as to warrant our
intervention, its findings are not open to judicial review.
Accordingly, the duty that
rests on the respondents to rebut the Board's findings of non-credibility is
very heavy. They must show that the Board's findings were made in a perverse
or capricious manner or are patently unreasonable; otherwise, the Court may not
set aside the decision of the Board.
In the instant case, the
applicants have not discharged their burden. The inferences drawn by the Board
are not so unreasonable as to warrant the intervention of this Court. It is
acceptable for the Board to have concluded, as it did, that the applicants'
testimony was implausible.
VI. CONCLUSION
The tribunal having made no
reviewable error, this application must be dismissed.
L-Marcel Joyal
JUDGE
O T T A W A, Ontario
August 1, 1997
Certified true translation
C. Delon, LL.L.
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