Date: 20101110
Docket: IMM-1902-10
Citation: 2010 FC 1126
Ottawa, Ontario, November 10, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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VICTOR ISABEL ORTEZ VILLALTA
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Applicant
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et
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CANADA (MINISTER OF CITIZENSHIP
AND IMMIGRATION)
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is a judicial review of a decision of the Immigration
and Refugee Board (“the Board”) denying the applicant refugee protection. The
Board member Roxanne Cyr determined that the applicant was not a Convention
refugee or a person in need of protection, in file MA8‑08117.
[2]
The assessment of the applicant’s credibility is
central to the Board’s reasons. The applicant submitted that the Board unfairly
assessed his credibility. He alleged that the Board failed to consider the
application on its merits, namely, the existence of persecution.
[3]
The proceeding before this Court is an
application for judicial review. In the context of the Board’s assessment of
credibility, the Court must show considerable deference and analyze the Board’s
decision according to the standard of reasonableness (see, for example, Shen
v. Canada
(Citizenship and Immigration), 2007 FC 442). A new
analysis of the applicable standard of review is not necessary whenever the
standard has been established by case law (Dunsmuir v. New Brunswick, 2008 SCC 9, at
para. 57). The use of the standard of reasonableness is also supported by paragraph 18.1(4)(d)
of the Federal Courts Act, R.S.C. 1985, c. F‑7, as construed
in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12.
[4]
The Court is therefore inquiring into “the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes”. The Supreme Court specified the
following: “But [a court conducting a review for reasonableness] is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
at para. 47).
[5]
The Board noted significant omissions in the
applicant’s PIF and port of entry interview. As the applicant did not amend his
PIF, despite having had the opportunity to do so, the Board did not accept his
justification for these omissions, which were nevertheless key elements of his
claim (that is, the telephone calls to his home, threatening him). It is well
established that, while it does not need to be encyclopedic, the PIF must nonetheless
contain the important and determinative elements of a claim for refugee
protection (Basseghi v. Canada (Minister of Citizenship and Immigration),
[1994] F.C.J. No. 1867; Sanchez v. Canada (Minister of Citizenship and
Immigration), 2000 CanLII 15189). A negative credibility finding regarding
a significant element of the claim may warrant dismissing the claim for refugee
protection (Sheikh v. Canada (Minister of Employment and Immigration), [1990]
3 F.C. 238 (F.C.A.); Obeng v. Canada (Minister of Citizenship and
Immigration), 2004 FC 636).
[6]
Thus, the Board found that the applicant had
been the victim of a random attack and that there had been no threats or persecution.
In the Board’s opinion, the risk posed by gangs in El Salvador was the
same for the applicant as for the general population and was unrelated to the
applicant’s innate characteristics (Prophète v. Canada (Citizenship and
Immigration), 2008 FC 331, affirmed on appeal in 2009 FCA 31). The Board
also assessed the risk of forced recruitment, relying on a
2007 DOS report.
[7]
The applicant argued that the Board’s arbitrary,
even overly fastidious, assessment of his credibility amounted to a failure to
exercise its jurisdiction over the merits (Attakora v. Canada (Minister of
Employment and Immigration), (1989) 99 N.R. 168; Djama v. Canada
(Minister of Employment and Immigration), 1992 CarswellNat 1136 (F.C.A.)). However,
the Board clearly looked beyond the credibility analysis. The denial of refugee
protection to the applicant was also justified by the absence of persecution and
the risk shared by the general population. The Board therefore properly
exercised its jurisdiction.
[8]
The Board’s decision, as a whole, is reasonable
and supported by law and fact. There is no need to interfere with its
assessment of the applicant’s credibility. A careful reading of the transcript of
the hearing before the Board shows that the Board questioned the applicant
several times regarding the omissions on record. The Board’s findings on the
applicant’s credibility, far from being arbitrary, are based on a proactive attitude
on its part that is worth noting. The Board’s decision will therefore remain
undisturbed.
[9]
The parties made no request for certification of
any question.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
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this application for judicial review be
dismissed;
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no question be certified.
“Simon Noël”
Certified true
translation
Tu-Quynh Trinh
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