Date: 20071219
Docket: IMM-6022-06
Citation: 2007 FC 1335
Toronto, Ontario, December 19, 2007
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JAVIER DIAZ PUENTES
LIZ
RAQUEL URDANETA GIL
JAVIER
A DIAZ URDANETA
GABRIELA
A DIAZ URDANETA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicants are citizens of Venezuela who challenge the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (RPD), dated October 10, 2006, which rejected their claim for refugee
protection under s. 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, made on the
ground of the principal Applicant’s political opinion. In coming to its
decision the RPD made several implausibility findings that, in my opinion, lack
an evidentiary base. As these findings led the RPD to conclude that the
Applicants had not suffered the past persecution they claim and, therefore, their
fear of persecution on return to Venezuela is not well founded,
the RPD’s decision must be set aside.
I. The Claim of
Persecution
A. Original PIF
[2]
The
original personal information form (PIF) of the principal Applicant states that
he is a former employee of the Venezuelan Petroleum Company (PDVSA). In January
2003, his employment was terminated as a result of his participation in a
national oil strike against the policies of Venezuelan President Hugo Chavez.
This termination prompted the principal Applicant to involve himself in
anti-Chavez political activities. He joined the anti-Chavez First Justice Party
and participated in political events.
[3]
In
the spring of 2003, as the result of his political involvement, he began to
receive threatening telephone calls. The callers said they would make the
principal Applicant “disappear” if he continued in his anti-Chavez activity.
[4]
Some
of these calls were anonymous, but over time these callers identified
themselves as members of the pro-Chavez Bolivarian Circles. The Applicants
moved to another city in Venezuela, Merida, to try to
avoid these threats; however, the threats did not stop. The principal
Applicant continued to be politically involved and volunteered his time to
encourage people to sign a petition for the recall referendum of President
Chavez.
[5]
In
2004, a list of the people who had signed the recall petition was published on
the internet. Included on this list were the names of the principal Applicant
and his wife. The threatening phone calls continued. In addition to the
Bolivarian Circles, some of the callers identified themselves as members of the
Armed Revolutionary Forces of Colombia (FARC).
[6]
In
March of 2004, three incidents occurred which led to the Applicants’ decision
to leave Venezuela: they received a threatening letter; while the principal
Applicant was away on business some men threatened his wife with a gun as she
was returning home from picking up their son from school; and the principal
Applicant was intercepted by men in a pick-up truck who yelled that he was
going to be executed and that they had orders to kidnap him and his family.
When the principal Applicant and his wife went to report these incidents they
found that they had no meaningful way of doing this as all of the officials
were supporters of President Chavez and corrupt. Therefore, the Applicants
felt that they had no choice except to leave Venezuela. In April of
2004 they arrived in Canada and claimed refugee status.
B. The
first RPD hearing
[7]
The
Applicants’ original RPD hearing resulted in a negative refugee determination. The
RPD disbelieved the principal Applicant’s testimony as his original PIF did not
contain all of the detail that he testified to in the hearing. A judicial
review of the original RPD decision was granted on January 26, 2006.
[8]
In
preparation for the new hearing, the principal Applicant amended his PIF. Such
amendments are allowed under s.6(4) of Refugee Protection Division Rules (SOR
2002-228).
C. The amended
PIF
[9]
The
amended PIF contains the same story as the original PIF but with more detail
regarding the principal Applicant’s political activities and specific threats
that he received. For example, one of the allegations in the amended PIF is that
the principal Applicant gave a radio interview and received a threatening phone
call as a result. The amended PIF specifies dates of other phone calls and provides
more specifics as to the threats that they contained. It also states that the
principal Applicant was not simply a First Justice Party member, but a delegate
for his area.
[10]
At
the second hearing before the RPD, resulting in the decision under review, the
principal Applicant explained that the reason that the additional details had
not been included in his first PIF is that he had submitted only a general
draft to his original lawyer, who he had not yet met, and did not have the
opportunity to revise it before it was filed. The principal Applicant expressed
dissatisfaction with his old lawyer and submitted to the RPD a copy of the
letter that he had written to the Law Society of Upper Canada stating that his
lawyer had negligently handled his claim.
II. The RPD’s
Decision
[11]
The
RPD released its
decision on October
10, 2006.
Although the RPD accepted that the principal Applicant and his wife were
politically active, it rejected their claim because it held that their fear of
persecution was not well founded.
[12]
A
key issue for the RPD was the principal Applicant’s credibility:
The determinative issues for me in the
claimants’ refugee protection claims were the principal claimant’s credibility
and whether the claimants’ fear of persecution at the hands of supporters of
the current government of President Chavez, such as the Bolivarian Circles, and
the FARC is subjectively and objectively well-founded. I did not find the
principal claimant to be a credible and trustworthy witness respecting his and the
remaining claimants’ refugee protection claims.
[RPD Decision, pp. 4-5]
This negative credibility finding is based
on the following implausibility factors:
1. that it was
unreasonable that the principal Applicant would not have included the details that
were in his amended PIF in his original PIF;
2. that the
principal Applicant failed to supply documentary evidence that he had
participated in the radio interview alleged in his amended PIF;
3. it was
unreasonable that the principal Applicant did not mention FARC at his port of
entry interview; and,
4. because the
Applicants had valid visas to the United States, it was unreasonable that they did
not leave Venezuela until April,
2004 if they had subjective fear of persecution.
[13]
As
a result the RPD found as follows:
In summary, given the foregoing negative
findings respecting the principal claimant’s credibility, I do not believe the
allegations that are set out in the principal claimant’s addendum to his PIF
narrative of July 17, 2006 respecting he [sic] and his family’s problems at the
hands of members of the Bolivarian Circles or that the principal claimant and
his family members were targeted by members of the FARC operating in Venezuela
as is alleged. I find all of these allegations to be an attempt by the
principal claimant to embellish his and the remaining claimants’ refugee
protection claims. I also find the claimants’ delay in leaving Venezuela to be inconsistent with a
subjective fear of persecution in Venezuela.
[RPD Decision pp.9-10]
[14]
Therefore,
as the RPD decision is based on implausibilities in the principal Applicant’s
story, the question that must be answered in the present Application is as
follows: Did the RPD make the
contested implausibity findings according to law?
III. The Standard
of Review for Credibility and Implausibility Findings
[15]
It is generally accepted that the standard of review to be applied
to RPD credibility findings is patent unreasonableness (Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732). Similarly, when
the RPD makes adverse credibility findings based on the implausibility of an
applicant’s story, it is entitled to be accorded deference on these findings. However, despite this deferential standard, the RPD must take care in making
its credibility findings. In Hilo v. Canada, (1991) 130 N.R. 236 the
Federal Court of Appeal stated at para. 6:
In my view, the board was under a duty to
give its reasons for casting doubt upon the appellant's credibility in clear
and unmistakable terms. The board's credibility assessment, quoted supra, is
defective because it is couched in vague and general terms.
[16]
In addition, before
making any credibility or implausibility findings, it must be remembered that a
refugee claimant is presumed to be telling the truth. Justice Muldoon in Valtchev
v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1131 at paras. 6- 8, provides a clear
outline of the rigor that is necessary in reaching negative credibility and
implausibility findings:
[6]
The tribunal
adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C
302 (C.A.) at 305, that when a refugee claimant swears to the truth
of certain allegations, a presumption is created that those allegations are
true unless there are reasons to doubt their truthfulness.
….
[7]
A tribunal may
make adverse findings of credibility based on the implausibility of an
applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A
tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions
which appear implausible when judged from Canadian standards might be plausible
when considered from within the claimant's milieu. [see L. Waldman, Immigration
Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[8]
In Leung v. M.E.I. (1994), 81 F.T.R.
303 (T.D.), Associate Chief Justice Jerome stated at page 307:
[14]
...Nevertheless, the Board is under a very clear duty to justify its
credibility findings with specific and clear reference to the evidence.
[15] This
duty becomes particularly important in cases such as this one where the Board
has based its non-credibility finding on perceived "implausibilities"
in the claimants' stories rather than on internal inconsistencies and
contradictions in their narratives or their demeanour while testifying. Findings
of implausibility are inherently subjective assessments which are largely
dependant on the individual Board member's perceptions of what constitutes
rational behaviour. The appropriateness of a particular finding can therefore
only be assessed if the
Board's
decision clearly identifies all of the facts which form the basis for their
conclusions. The
Board will
therefore err when it fails to refer to relevant evidence which could
potentially refute their conclusions of implausibility...
[Emphasis
in original]
IV. Application of
the Legal Standard to the RPD’s Implausibility Findings
A. The amended
PIF
[17]
As
pointed out by the Respondent, the RPD is entitled to compare a PIF to an
applicant’s testimony and to make credibility findings based on inconsistencies
and omissions (Khalifa v. Canada (Minister of Citizenship
and Immigration) 2004 FC 36). However, in my opinion, a distinction must be
made between a situation where a PIF has been amended to add statements that
are different than the ones contained in the original PIF and the present one,
where the PIF has been amended to add more detail. In this latter instance, before
concluding that a claim is fabricated, the RPD must look at the entirety of the
evidence on the record to assess whether there is evidence to support such a
conclusion (Ameir v. Canada (Minister of Citizenship and Immigration)
2005 FC 876 .
[18]
When
PIF amendments do not in any way change an applicant’s story, but simply
provide more detail to information that is already on the record, this alone
does not undermine the presumption that the testimony of the witness is true. In
the present case, the principal Applicant’s original PIF stated that he had
received threatening phone calls, as a result of his political activities, from
the Bolivarian Circles and from FARC. In his amended PIF the same story was
told, albeit with more detail. The principal Applicant also explained why his
first PIF was general: because he did not have support from his original
lawyer.
[19]
Without
any evidence that contradicts the principal Applicant’s story, it is presumed to
be true. Nevertheless, the RPD found it to be implausible and rejected it on this
basis. To make this finding according to law, it was necessary for the RPD to
explain why the facts that the principal Applicant
presented were outside the realm of what could reasonably be expected. It did
not do this. The RPD found that the claims in the amended PIF were “of a serious
nature” and “central” to the claim for protection, that the principal Applicant
had legal representation when completing his PIF, and that the PIF instructions
tells claimants to include all of the significant events that lead them to
claim refugee protection. Therefore, the RPD concluded that it was unreasonable
that the additional detail was not included in the original PIF. The RPD then devoted
over two pages of its decision to a discussion of whether the Applicants’
original lawyer was, in fact, negligent. It concluded that he was not and,
therefore, the explanation for the PIF omissions was “unreasonable”.
[20]
This
reasoning process is deficient because it does not address “why” the principal Applicant’s
story is outside the realm of what could reasonably be expected. Instead, it
bypasses any analysis of the principal Applicant’s story and focuses on whether
the original lawyer was negligent, which I find to be an irrelevant
consideration.
B. Failure
to supply supporting documentation
[21]
The
RPD disbelieved the principal Applicant’s statement that he had participated in
a radio interview and, as a result, received a threat by phone. The reason given
for disbelieving this statement was that the principal Applicant was unable to
provide evidence confirming the occurrence of the interview.
[22]
Given
that the presumption that the principal Applicant’s testimony is true, the RPD
cannot find that his story lacks credibility simply because he does not provide
collaborating documentation (Ahortor v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 705).
The
principal Applicant testified, and provided documentation, verifying the radio
program’s existence and the existence of the person who interviewed him.
However, the principal Applicant testified that, although he had contacted the
radio station, the personnel there were unable to provide him with a copy of
the program. In the absence of any evidence suggesting that the interview did
not take place, and in the absence of any cogent reason to doubt the
Applicant’s story, in my opinion, it was not open to the RPD to use the lack of
corroborating evidence of the interview as a basis for doubting the credibility
of the Applicant.
C. Omissions
at port of entry interview
[23]
At
his port of entry interview the principal Applicant was asked to list his
persecutors. In response, the Applicant mentioned the Bolivarian Circles but
not FARC, because he was told to be brief and because the Bolivarian Circles
was the group he feared most. It is open to the RPD to note omissions from
port of entry notes and to use them to decide how much weight to accord an
applicant’s testimony. However, any omission must be reviewed in context, and
be assessed in light of the totality of the evidence. In the present case, the
RPD did not accept the principal Applicant’s explanation, and found, in
essence, that since he did not mention FARC his whole story about FARC was a
concoction. In failing to provide reasons for this finding and in failing to
view the port of entry evidence in context, I find the RPD’s conclusion is patently
unreasonable.
D. Lack
of subjective fear
[24]
The
RPD also did not believe the principal Applicant had a subjective fear of
persecution. This was because the RPD found it implausible that the Applicants
did not leave Venezuela earlier, since the persecution had been going on for
some time and all of the Applicants had visas which enabled them to go to the United
States.
[25]
The
RPD provided no reasons for its conclusion that this course of action was implausible;
rather, this finding is based on a subjective assessment which is totally unrelated
to the principal Applicant’s story. Indeed, there is no critical analysis of
the evidence. The principal Applicant’s evidence, in both of his PIFs and in
his oral testimony, is that the Applicants left Venezuela when they
did as a result of the three incidents that took place in March 2004, which are
detailed above. These incidents were much more serious and, according to the
principal Applicant, made the Applicants realize that they would never be free
from persecution should they remain in Venezuela. The RPD
provided no reasons as to why, in light of this explanation, that the delay in
leaving the country was implausible. Therefore, I find that this finding is patently
unreasonable.
V. Conclusion
[26]
The
issue for determination is: Did the RPD make the contested implausibility
findings according to law? My answer is “no”. As a result, I find that the
decision under review is patently unreasonable.
ORDER
Accordingly,
the RPD's decision is set aside and the matter is referred back to a
differently constituted panel for redetermination.
“Douglas R. Campbell”
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