Date: 20120517
Docket: IMM-7907-11
Citation: 2012 FC 599
Toronto, Ontario, May 17,
2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ANGEL UGUSTO ANZOLA BARRAGAN
CLARA LUZ BOHORQUEZ
KATHERINE ANZOLA BOHORQUEZ
LUZ ANGELA ANZOLA BOHORQUEZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division
(RPD), dated October 17, 2011, determining that the Applicants, Angel Augusto
Anzola Barragan (the Applicant), his wife and two daughters, are not Convention
refugees or persons in need of protection. Each of the Applicants is a citizen
of Colombia and claimed
refugee protection fearing the FARC-EP.
[2]
A
fundamental element of the Applicants’ s. 97 claim is proof of threats made by
FARC. The evidence tendered as proof is composed of the Applicant’s testimony
that he received two threatening letters, and a threatening phone call. The
letters and a tape recording, including a translation from Spanish to English,
were tendered into evidence before the RPD. The RPD rejected the evidence on a
finding that, in my opinion, constitutes a breach of the duty of fairness owed
to the Applicant.
[3]
The
focus of the RPD in rejecting the evidence was the manner in which the
Applicant recorded the telephone threat. The RPD’s finding an this point is as
follows:
[…] Even more problematic was a recording
that the claimant presented which purported to be an audio recording of a
threatening call from the FARC-EP. He stated that the authorities had advised
him that he would need proof of the threats for them to act so he had prepared
a recorder in advance. Once he received a call wherein he recognized the
caller as being from FARC-EP, he intentionally hung up and prepared the
recording device. The claimant repeatedly described both verbally and physical
[sic] how he took the headphones from the recorder sitting on the desk
and held them up to his cell phone, which he held near his ear. However, as
noted at the hearing, the claimant described using an ordinary pair of
headphones to do the recording and tat ordinary headphones only play back
sound, they do not record it and do not have a microphone. The claimant stated
that this was simply what he did. I do not find the claimant’s explanation
satisfactory. In order to prepare to record an expected threatening call, the
claimant would have had to learn how to work the recording device in advance.
The claimant was alone at the time of the alleged threatening call so there was
no one there to help him. It was simply not possible for the claimant to
record a phone conversation by holding common headphones up to a cell phone
that he was holding near his head. Even if he had somehow pushed record while
the recorder was on the desk in front of him, it makes no sense that a desk
based microphone would pick-up the conversation from a cell phone held up to
the claimant’s head in the fairly clear fashion as the physical recording demonstrates.
I find on a balance of probabilities, that the recording presented by the
claimant is a forgery. This not only calls into question the authenticity of
the documents presented by the claimant, but also that his reliance on it
undermines his credibility.
[Emphasis added]
(Decision, para. 7)
[4]
Thus,
it seems that because the RPD could not understand the description given of how
the recording was conducted, the RPD came to the conclusion that, not only was
the recording a fraud, but the independent threatening letters were a fraud,
and, indeed, the Applicant is a fraud. The law with respect to making such a
serious global finding of negative credibility is expressed in Maldonado v
Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA); a
reason must be found to rebut the presumption that a claimant is telling the
truth in giving sworn testimony. The reason provided by the RPD for rejecting
the evidence is that the presiding Member and the Applicant could not arrive at
a common understanding of how the recording was conducted. This is not
surprising based on the fact that the Applicant provided his evidence in
Spanish, and through the translator, the evidence which reached the RPD member
was not made at all clear as demonstrated by the following excerpt from the
transcript of the hearing:
MEMBER: Now, I should have asked
you this a moment ago. You have an audio recording of one of those phone calls.
How did you come to have an audio recording of one of the phone calls?
CLAIMANT 1: When I
went … when I went to the Immediate Reaction Unit of the police they gave me
the advice to get proof, and if I could get a recording it would be a lot
better. I bought a small recording device, like a pocket recorder with
earphones that you can put it here in your ears. I bought the cassette, and I
checked out that everything worked perfectly well and that it did indeed
record. I always had it in my jacket … or my jacket pocket. On the 21st
of August … sorry, on the day … August the 1st around 11:00 am I was
getting some moulds … some leather moulds in order to prepare them to send them
to Miss … to the Posa L … L.C. Company in the United States … the United States. When the hone rang I was here at the
table working. I said, “Hello?” and she said … and the person … and sorry, the
call … and they said, “Would Angel Anzola.” I immediately recognized the
voice. And I said, “Hello? Hello?”, like as if I couldn’t hear, and I hung
up. I went to my jacket. It was … the jacket … my jacket was underneath the
table. I took out the recording … the tape recorder and I put the … a lever of
the head phones up to the cell phone, yeah, the headphones, the speakers to the
cell phone. The … yeah, the ear phone, whatever … the ear phone, head phones,
I put it up to the cell phone, and when I was replacing it … when I was placing
the headphones or ear phones onto the cell, it rang again. I pressed the
recording device and said, “Hello?”
[…]
CLAIMANT 1: The tape recorder
has some kind of headphones that one normally would put here, and the Claimant
if pointing to his ears. Like the ones that you use to listen like a Discman,
to listen to music. I had that connected to the tape recorder. This little
cable I put.
[…]
MEMBER: All right sir.
Maybe we’ll try to clarify a bit. Most sets of headphones, there’s essentially
two ends. On one end you’ve got a couple of pieces for your ears, and you
usually put those in your ears or over top of your ears.
CLAIMANT 1: Yeah, in your
ears. Yeah.
[…]
CLAIMANT 1: I put it on my
hand and I pressed the cell phone like this. This is the headphones in my hand
and I had put the cell phone to it like this.
MEMBER: So you put the
pieces that go in your ears next to the cell phone?
CLAIMANT 1: Correct.
(Certified Tribunal Record,
pp. 540 – 543)
[5]
The
use of the term “headphones” in the translation, and the Member’s technological
understanding of the design of “common headphones” on the market, played an
important role in the result. In my opinion, to be fair to the Applicant, the
Member was required to pause before rushing to the conclusion that fraud
existed; a more careful effort was required to understand the Applicant’s
evidence. If after such an effort the Member was still not satisfied with the
verifiability of the recording taken, the tape could have been found to be
inadmissible as evidence. However, the failure to reach a common understanding about
how the recording was taken was not so appropriately limited: it had the profound
effect of extinguishing the Applicant’s s. 97 claim. In my opinion, this result
is not sustainable given the breach of the duty of fairness owed to the
Applicant.
[6]
As
a result, I find that the decision under review was rendered in reviewable
error.
ORDER
THIS COURT
ORDERS that:
1.
The
decision under review is set aside and the matter is referred back to a
differently constituted panel for redetermination;
2.
There
is no question to certify.
“Douglas R. Campbell”
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