Garcia Perez v. Canada (Citizenship and Immigration), 2007 FC 661

 

Date: 20070620

Docket: IMM-4913-06

Citation: 2007 FC 661

Toronto, Ontario, June 20, 2007

PRESENT:     The Honourable Madam Justice Mactavish

 

 

BETWEEN:

ALMA CECILIA GARCIA PEREZ

Applicant

and

 

THE MINISTER OF CITIZENSHIP

 AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Alma Cecilia Garcia Perez sought refugee protection in Canada, claiming to fear for her life in Mexico at the hands of her ex-boyfriend.  Ms. Perez asserts that her ex-boyfriend sought to harm her because she had terminated their relationship in order to enter into a same-sex relationship with Maria Guadalupe Escobedo Guarneros.

 

[2]               The refugee claims of Ms. Perez and Ms. Guarneros were heard together.  Before the Board, the claimants asserted that their lesbian relationship had led Ms. Perez’ ex-boyfriend to threaten them with death.  They also claimed that, together with two friends, Ms. Perez’ ex-boyfriend physically and sexually assaulted each of them, causing them to fear for their lives in Mexico.

 

[3]               The Refugee Protection Division of the Immigration and Refugee Board rejected the couple’s refugee claims on credibility grounds.  Only Ms. Perez seeks judicial review of the Board’s decision.

 

Analysis

[4]               The respondent candidly acknowledges that the Board’s decision is “not great” and that the decision could not withstand scrutiny under either the correctness or reasonableness standard.  However, the respondent says that the Board’s negative credibility findings are not patently unreasonable, and that, as a result, the decision must stand.

 

[5]               I do not agree.  In my view, the errors made by the Board are sufficiently serious as to render it unsafe to allow the decision to stand.

 

[6]               The first error committed by the Board is in the very first paragraph of the decision, where the Board identifies Ms. Guarneros as the principal applicant, and the alleged agent of persecution as being her ex-boyfriend.  In fact, it was Ms. Perez who was the principal applicant, and it was her ex-boyfriend that the couple allegedly feared.

 

[7]               It is true that from that point on in the decision, the Board appears to have the claimants right, and attributes testimony and allegations to the proper claimant.  If this were the only error on the part of the Board, I would agree with the respondent that it was essentially a typo, and would not justify the setting aside of the decision.  It is, however, indicative of a lack of care that is worrisome.  Moreover, it is not the only error committed by the Board.

 

[8]               A much more serious error on the part of the Board relates to the fact that most of the Board’s negative credibility findings relate exclusively to Ms. Guarneros.  No negative credibility findings were specifically made with respect to Ms. Perez, whose personal circumstances were at the heart of the claim.  Nevertheless, the claims of both women were rejected.

 

[9]               The respondent submits that the claims of the two women were intertwined, and a finding that Ms. Guarneros was not credible inevitably leads to the conclusion that Ms. Perez’ story was also not credible.  While initially attractive, this submission does not hold up under scrutiny.  This is because most of the Board’s negative credibility findings regarding Ms. Guarneros relate to matters that are peripheral to or independent of Ms. Perez’ claim. 

 

[10]           By way of example, the Board found that the claimants’ story was not credible based, in part, on an inconsistency between Ms. Guarneros’ Personal Information Form (or “PIF”) and her oral testimony as to whether her parents were aware of her sexual orientation.  Whether or not Ms. Guarneros told her mother that she was a lesbian after she was allegedly sexually assaulted by Ms. Perez’ ex-boyfriend and his friends simply has no bearing on the truthfulness of Ms. Perez’ story.

[11]           Similarly, the Board rejected Ms. Guarnero’s claim that her parents had received death threats after she left Mexico, noting that while these threats were mentioned in her PIF narrative, no mention of these threats was made in her oral testimony, and that Ms. Guarneros had testified at the hearing that her parents were fine.  The Board found that Ms. Guarneros had fabricated the allegation of threats to embellish her claim.

 

[12]           Even if that is the case, it sheds no light on the question of whether or not Ms. Perez’ story is true.

 

[13]           Finally, the Board did not accept Ms. Guarneros’ claim that she had been stalked by Ms. Perez’ ex-boyfriend prior to the sexual assault, given that there was no mention of the stalking in her PIF.  The Board found that this allegation had also been fabricated by Ms. Guarneros to bolster her claim. 

 

[14]           Here once again, this negative credibility finding in relation to Ms. Guarneros does not automatically call the veracity of Ms. Perez’ testimony into question.

 

[15]           Insofar as Ms. Perez herself was concerned, the Board rejected her psychological evidence on the basis that the factual underpinning of her story was not credible.  Given that I have found that the Board’s negative credibility finding with respect to Ms. Perez to be patently unreasonable, it follows that the reasons given for rejecting the psychological evidence are similarly suspect.

 

[16]            Finally, the Board found that that both the Mexican medical report ostensibly documenting the injuries allegedly suffered by Ms. Perez during the sexual assault, and the birth certificate provided for her ex-boyfriend should be given no weight.  While I am not persuaded that these findings were patently unreasonable, they do not, by themselves, provide a sufficient basis for rejecting the totality of her evidence.

 

Conclusion

[17]           Where an applicant swears to the truth of allegations, a presumption that those allegations are true is created unless there is reason to doubt their truthfulness: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302.  The fact that Ms. Guarneros may have embellished her story as it related to her own experience does not give reason to doubt the truthfulness of Ms. Perez’ testimony.  As a consequence, the Board’s negative credibility finding regarding Ms. Perez is patently unreasonable, with the result that the Board’s decision must be set aside.

 

Certification

[18]           Neither party has suggested a question for certification, and none arises here.

 

 

 

 

 

JUDGMENT

 

            THIS COURT ORDERS AND ADJUDGES that:

 

            1.         This application for judicial review is allowed, and the matter is remitted to a different panel for re-determination; and

 

            2.         No serious question of general importance is certified.

 

 

                                                                                                              “Anne Mactavish”

FEDERAL COURT

 

 NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-4913-06

 

 

STYLE OF CAUSE:                          ALMA CECILIA GARCIA PEREZ v.

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

 

DATE OF HEARING:                      June 19, 2007

 

 

REASONS FOR JUDGMENT

 AND JUDGMENT:                         MACTAVISH J.         

 

 

DATED:                                             June 20, 2007             

 

 

APPEARANCES:

 

Mr. Paul VanderVennen                                                           FOR THE APPLICANT

 

Mr. Brad Godkin                                                                      FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

VANDERVENNEN LEHRER                                                                            

Toronto, Ontario                                                                      FOR THE APPLICANT

 

JOHN H. SIMS, Q.C.                                                            

Deputy Attorney General of Canada

Toronto, Ontario                                                                      FOR THE RESPONDENT