Date: 20081222
Docket: IMM-2551-08
Citation: 2008 FC 1404
Ottawa, Ontario, December 22, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
GERBERTH
DANILO AGUILAR REVOLORIO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision of the Immigration and Refugee Board (IRB)
denying a claim for refugee protection. The IRB decision turned principally on
credibility findings. In the specific circumstances of this case, the Court is
prepared to question the credibility findings for the reasons set forth herein.
II. BACKGROUND
[2]
The
Applicant, a 45-year old male, is a citizen of Guatemala. He was a
senior official in a Guatemalan prison and was either dismissed or resigned the
day before a prolonged riot broke out, during which several people were killed
- among them former Sergeant Jose Obdulio Villanueva. It appears that the
Applicant was involved in attempting to reduce tensions and negative conditions
in the prison prior to the riot. The IRB at one point had a concern as to
whether the Applicant was in control of the prison at the time of the riot.
[3]
In
his application to the IRB, the Applicant contended that a reliable source had
informed him he was to be assassinated by a member of a kidnapper gang. According
to the Applicant, the alleged assassination had been ordered by Byron Lima
Oliva, one of three former military who were imprisoned for the killing of a
bishop known for his human rights and historical recovery work. The
assassination was apparently ordered because the former Captain believed that
the Applicant had arranged for his co-accused, former Sergeant Jose Obdulio
Villanueva, to be killed during the riot.
[4]
The
Applicant contended that he had been followed, threatened with death, and given
72 hours to leave the country. He said that, before leaving the country,
he filed a denunciation with the Guatemalan penal court claiming that
individuals had followed him and that they appeared to be associated with the
Guatemalan government. Evidence of the denunciation was submitted.
[5]
In
late May of 2003, the Applicant went to the United States where he
remained for just over four months. When he returned to Guatemala, the
Applicant went to his father’s farm outside Guatemala City and largely
stayed out of sight for a year and a half.
[6]
After
that time, the Applicant began re-integrating into his normal Guatemalan life. He
was then in contact with a judge of the penal court from whom he learned that
nothing had been accomplished with respect to his denunciation. The Applicant
argued that the lack of positive results in respect of his denunciation was
evidence that state protection was not available to him, as the police had full
power to investigate and had chosen not to do so.
[7]
The
Applicant said that he became aware, in July 2005, that he was being followed
by the same men who had pursued him two years before. He also stated he was receiving
phone threats.
[8]
On
August
2, 2005,
the Applicant left Guatemala for the second time and stayed in the New Jersey area for
approximately seven and a half months. After that, he travelled to Canada to make his
refugee claim.
[9]
The
IRB concluded that there was a criminal vendetta against him, but that there
was no connection between the vendetta and any of the Convention grounds.
[10]
The
IRB found the issue of credibility to be the determining factor in the case,
and found that the Applicant’s conduct was inconsistent with that of a person
holding the subjective fear of harm under section 96. The IRB summarized the
Applicant’s reasons for returning to Guatemala after four months in the United
States
as being his dislike of living in California. The IRB also found
that the Applicant’s failure to claim refugee status at the earliest
opportunity was fatal to his claim of imminent risk. In its decision, the IRB
twice referred to Bogota, rather than to Guatemala City, when
describing the Applicant’s return to his normal life after some time at his
father’s farm.
III. ANALYSIS
[11]
The
Applicant raises two issues in support of this judicial review. The first is
that the decision was based on peripheral grounds. The Court understands that
there is an argument that the IRB did not focus on the seriousness of the
threats to him which arose from his work in the prison. The second is that the IRB
made numerous factual errors in its credibility assessment.
[12]
The
IRB’s decision turned on its conclusion of credibility, which it held to be the
central issue in this case. In the post Dunsmuir environment (Dunsmuir
v New
Brunswick,
2008 SCC 9), such decisions attract a standard of review of reasonableness,
with deference owed to the IRB’s expertise and its opportunity to assess the
witness (see also Khokhar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449).
[13]
As
to the first issue, the Court of Appeal in Canada (Minister of
Citizenship and Immigration) v. Sellan, 200 FCA 381 has held
that a general finding of lack of credibility is sufficient to dispose of a
claim unless there is “independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim” (Sellan,
above, at paragraph 3).
[14]
Here
there was such evidence, as confirmed by the IRB in its conclusion, under s. 96
that there was a vendetta against the Applicant although it was not tied to s.
96 grounds. The vendetta was capable of being tied to s. 97 grounds, yet the
IRB paid scant attention to this objective evidence.
[15]
The
Court finds that there are sufficient and significant errors, as well as errors
of lesser magnitude, which undermine the sustainability of the decision. The
Court is reluctant to overturn credibility findings except in the clearest case
of error, such as occurred here.
[16]
The
IRB decided this case on the basis of lack of subjective fear. It is evident
that the IRB found the Applicant’s conduct - reavailment and delay in claiming
- inconsistent with a real fear of harm.
[17]
The
IRB erred in its credibility assessment in that it misstated or misunderstood
the Applicant’s reasons for reavailment. The IRB is entitled to deference in
respect of credibility findings only if it understands the evidence before it.
[18]
Contrary
to the IRB’s finding that the Applicant returned to Guatemala because he did
not like living in California, the Applicant clearly stated that he returned
because he thought that the situation in Guatemala had
improved. He also stated that he went to his father’s farm, rather than to his
home in Guatemala
City,
both at his family’s request and for financial reasons. The credibility finding
and the reason for reavailment are so tightly linked that an error on this one
point is sufficient to undermine the very basis for the IRB’s decision.
[19]
The
IRB also seemed to make light of the threats to the Applicant on the basis that
he never was actually harmed. It is not necessary for an applicant to establish
the veracity of threats by actually suffering the threatened harm (Muckette
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1388).
[20]
Lastly,
the IRB erred in its reference to Bogota. It is clear that the
proper city of reference was Guatemala City. This misstatement might
be a typographical error. There is no indication other than two references to
Bogota to suggest that the country of reference was Columbia. However,
against the background of the other errors in this case, the Court cannot be
assured that this was no more than a typographical error or minor inadvertence.
IV CONCLUSION
[21]
For
all these reasons, this judicial review is granted, the IRB’s decision quashed,
and the matter is to be referred back to a different panel for a new
determination.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the Immigration and Refugee Board’s
decision is quashed, and the matter is to be referred back to a different panel
for a new determination.
“Michael
L. Phelan”
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