Date: 20080227
Docket: IMM-1671-07
Citation: 2008 FC 254
Ottawa, Ontario, February 27,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CARMEN ALICIA MANTILLA CORTES
CARLOS ADOLFO VELILLA DE LA ESPRIEL
JUAN DAVID VELILLA MANTILLA
CARLOS ADOLFO VELILLA MANTILLA
LAURA DANIELA VELILLA MANTILLA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Carmen Alicia Mantilla Cortes, her
husband, Carlos Adolfo Velilla Dela Espriel (also known as Carlos Adolfo
Velilla de la Espriella), and their three children (collectively, the
Applicants) from a decision of the Refugee Protection Division of the
Immigration and Refugee Board (Board) issued on March 23, 2007 whereby their
claims to refugee protection were denied.
I.
Background
[2]
The
Applicants claimed protection in Canada on the basis of an
alleged fear of persecution at the hands of guerrilla groups in Colombia. Several
members of the Applicants’ extended family have, from time to time, sought
protection successfully and otherwise in the United States and Canada.
[3]
The
culminating event that caused the Applicants’ departure from Colombia to the United
States
was an alleged attempted kidnapping of Ms. Mantilla Cortes in late 1999. This
incident followed a reported history of extortion, attempted kidnapping,
kidnapping and threats directed primarily at Ms. Mantilla Cortes' father and
her siblings over a period of more than 10 years.
[4]
By
January 2000 all of the Applicants had arrived in the United States where they
remained until July 2005. At no time during their United States residency
did they seek asylum despite having obtained legal advice about the process on
a number of occasions. The Applicants entered Canada on July 7,
2005 and promptly claimed refugee protection.
[5]
The
record indicates that several of Ms. Mantilla Cortes' siblings and her father
are now living back in Colombia despite having left
there supposedly out of a fear of persecution similar to that expressed by the
Applicants.
II. The Board
Decision
[6]
The
Board rejected the Applicants' claims on the basis of its adverse
credibility findings and, in particular, because it did not accept the
testimony of Ms. Mantilla Cortes. The Board was concerned by numerous
identified weaknesses, lapses and inconsistencies in Ms. Mantilla Cortes'
evidence including conflicts with the history of events given previously by her
and by other involved parties. The Board was also troubled by Ms. Mantilla
Cortes' inability to
provide a plausible explanation the failure to seek asylum during 5 years of United
States
residency. The Board also took account of the reavailment to Colombia by several
members of Ms. Mantilla Cortes' similarly situated family, all of whom apparently
returned to positions of ostensible personal risk working with her father.
[7]
The
Board declined to consider the successful protection claims brought by other
members of Ms. Mantilla Cortes' family and, instead, made its decision on
"the evidence presented in front of us, in the case of the claimants in
front of us". The Board also rejected most of the Applicants’ corroborating
documentary evidence including several police denunciations and a copy of a
newspaper account of a 1989 kidnapping incident involving Ms. Mantilla Cortes'
brother. The Board’s rejection of the newspaper article was based on several
identified inconsistencies between its content and the accounts given by the
family principals who were allegedly involved. The Board's rejection
of the police denunciations was expressed as follows:
All of this makes us think that claimants
invented a story in order to get a status in Canada. The other claimants, basing their
problems on the same facts as those alleged by the principal claimant, are not
credible either.
Not having found them credible, we do not
give any probative value to the following documents: M-19 (denunciation of her
brother José Hernando), M-20 to M-25 (declarations), M-43 (denunciation made in
Fairbury 2006) and M-49 (denunciation made on July 2006).
III. Issues
[8]
(a) Did
the Board err by failing to consider the disposition of earlier refugee claims
brought by members of the Applicant’s extended family?
(b)
Did the
Board err by failing to address problems with the translation of testimony
during its hearing?
(c)
Did
the Board err in its credibility assessment?
(d)
Did
the Board err in its assessment of the evidence of delay and family
reavailment?
(e)
Did the
Board err in its treatment of the documentary evidence tendered by the
Applicants?
IV. Analysis
[9]
Most
of the issues raised by the Applicants involve challenges to the Board’s assessment
of the evidence including its credibility findings. These are issues deserving
of the highest level of deference: see Aguebor v. Canada (Minister of
Employment and Immigration) (1993) 160 N.R. 315, 42 A.W.C.S. (3d) 866
(F.C.A.) at page 316 (cited to N.R.) For the sake of argument, I am prepared
to apply the standard of correctness to the translation issue (being an issue
of fairness) and also to the Board’s treatment of the related refugee claims by
other members of the Applicants’ extended family (being an issue of law.)
The Relevance of Related
Refugee Claims
[10]
It
was forcefully argued on behalf of the Applicants that the Board erred in its
analysis of the significance of the claims to protection successfully brought
by Ms. Mantilla Cortes' sister and, more recently, by her niece. There is no
doubt that the Board declined to take the disposition of these earlier claims
into account but the Applicants cited no authority to establish that the Board
was under any legal obligation to do so. The Board’s approach to this issue is
in accordance with the authorities including Bakary v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1111, 155 A.C.W.S. (3d) 161, where
Justice Yvon Pinard held at paras. 9 and 10:
[9] As for the respondent’s
submissions, he first criticizes the IRB for failing to analyze the criterion
of membership in a particular social group, i.e. the family. According to him,
the IRB’s analysis did not dispute that he is a member of the Bakary family
which, according to the evidence, has suffered persecution: several members of
his family have had to seek refuge abroad, and a number of them have been
received in Canada as refugees.
[10] In my view, however, a simple
reading of the decision discloses that the IRB clearly considered and analyzed
the applicant’s claim on the basis of his alleged membership in the particular
social class of his family. Moreover, a large number of cases decided by this
Court have established that the IRB is not bound by the result in another
claim, even if the claim involves a relative, because refugee status is
determined on a case by case basis, and because it is possible that the other
decision was incorrect (see, inter alia, Rahmatizadeh v Minister of
Employment and Immigration, [1994] F.C.J. No. 578 (F.C.T.D.) (QL); Museghe
v. Minister of Citizenship and Immigration, 2001 FCT 1117; Singh v.
Minister of Citizenship and Immigration, 2002 FCT 1013; Matlija v.
Minister of Citizenship and Immigration, 2003 FCT 704; Gjergo v.
Minister of Citizenship and Immigration, 2004 FC 303 and Bromberg v.
Minister of Citizenship and Immigration, 2002 FCT 939). Therefore, in my
view, the IRB did not fail to consider the criterion of membership in the
particular social group of his family.
V. Translation
Issues
[11]
The
Applicants complain that there were problems with the interpretation of the
testimony before the Board, contributed to by the separation of the interpreter
from the witnesses during the videoconference hearing. This issue was raised
before the Board and was resolved on the following basis:
…We want to make the following comments
with respect to some of the submissions made by the counsel. First of all,
when the principal claimant did not hear well the interpreter at the beginning
of the hearing, he always repeated the questions or answers so that the
principal claimant could hear and understand well what was said. The President
of the Tribunal had also told her to feel free to interrupt the hearing and
tell whenever something would not be clear. The principal claimant was
nervous, yes, but we can not impute that nervousness on technical problems or
problems of hearing. If it were the case, the lawyer should have told us
during the hearing to stop and tell us about his concerns. He did not do so.
[12]
While
it is certainly a preferred practice to co-locate a translator with the
witnesses during a videoconference hearing, the Board’s policies do allow for
exceptions; and, in any event, there is nothing in the record to substantiate
the complaint that Ms. Mantilla Cortes' evidence was badly translated or that she
was confused about the questions posed to her. The few problems that were
identified during the hearing were adequately addressed by the Board and no
other complaints about this issue were made by the Applicants or by their
counsel during the hearing. Inasmuch as the Board member was fluent in Spanish
any problems with translation would have been readily identified. Furthermore,
it is not enough to allude vaguely to problems with translation. What is
necessary is to establish actual and material prejudice: see Ngyuen v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1001, 141 A.C.W.S. (3d) 109 at
para. 21. Here the Applicants have identified no specific point of prejudice
and their silence throughout the hearing is a clear indication that no material
translation problems arose.
The Board’s Credibility
Analysis
[13]
The
Applicants challenge the Board’s credibility findings with broad assertions
that the Board essentially got it wrong. They say that their explanations for
the matters of concern to the Board were reasonable and that the testimonial
failings identified by the Board were not important. While acknowledging that
there were “problems” with Ms. Mantilla Cortes' evidence, the Applicants
contend that the Board’s reasons for rejecting that testimony involve minutia
and failed to address the central aspects of their allegations of persecution.
[14]
The
fundamental problem with this argument is that the weaknesses in Ms. Mantilla
Cortes' testimony
went far beyond matters of insignificant detail. As counsel for the Respondent
accurately pointed out, Ms. Mantilla Cortes was frequently inconsistent about
the identity of the agents of persecution and, in that regard, gave evidence
that was contradictory to the statements provided by other members of her
family. The Board also noted Ms. Mantilla Cortes' vagueness about the details
of the ransom allegedly paid on behalf of her brother and it identified several
important omissions and inconsistencies among the various narratives provided
by Ms. Mantilla Cortes and by other members of the family concerning
material aspects of the alleged persecution. Finally, the Board was not
impressed by Ms. Mantilla Cortes' demeanour and it specifically noted a lack
of spontaneity in her responses to key questions.
[15]
It
is not the role of the Court on judicial review to re-weigh the evidence or to
draw its own inferences from that evidence. The Board is, after all, in the
best position to assess the credibility of the witnesses who appear before it.
Here the Board’s credibility findings were reasonably supported by the evidence
and I am, therefore, not satisfied that the Board erred in this aspect of its
analysis.
Delay and Family
Reavailment
[16]
The
Applicants contend that the Board erred by failing to accept their explanations
for failing to seek asylum in the United States and for the return to Colombia
of several members of their extended family who were also allegedly at risk.
[17]
It
is clear from the decision that the Board considered the explanations provided
about delay and family reavailment but found those explanations to be lacking.
With respect to the issue of the reavailment of other family members to Colombia, the Board
drew the following inference:
Three very close persons to the claimant
went back to Colombia. We do not think that if the
problems in Colombia for this family were as bad
as the claimant alleges them to be, they would all have gone back to that
country.
[18]
This
was a reasonable inference to draw from the evidence and it is not open to
successful attack on judicial review simply because another inference was
available. This is again an invitation by the Applicants for the Court to
substitute its own view of the evidence for that of the Board.
[19]
The
Board’s adverse inference drawn from the failure by the Applicants to seek
protection during their 5 years of United States residency is similarly
unimpeachable. Indeed, given that the Applicants were well aware of the
process for seeking asylum in the United States, it was reasonable that
the Board found their explanation for not doing so to be unconvincing. I
would add that, absent a convincing explanation, this failure to pursue asylum
during a period of more than 5 years is markedly inconsistent with a subjective
fear of persecution.
Did the Board err in its
treatment of the documentary evidence tendered by the Applicants?
[20]
The
Applicants’ complaint concerning the Board’s treatment of their corroborative documents
is also unmeritorious. The Board concluded that the Applicants had “invented a
story” and it therefore rejected their tendered documents as being similarly
unreliable. With respect to the 1989 newspaper account describing the
kidnapping of Ms. Mantilla Cortes' brother, the Board noted a number of
inconsistencies between the reported facts and those attested to by various
members of the family including Ms. Mantilla Cortes. The Board was
particularly concerned that the newspaper account referred to the kidnappers as
members of the EPL whereas Ms. Mantilla Cortes' father
identified them as members of the ELN. These identified inconsistencies and
the Board’s explicit rejection of the Applicants’ testimony were sufficient to
support its conclusion that the corroborating documents were unreliable: see Hossain
v. Canada (Minister of
Citizenship and Immigration), 102 A.C.W.S. (3d) 1133, [2000] F.C.J. No.
160 at paras. 4 to 6.
[21]
In
conclusion, I have identified no reviewable error in the Board’s treatment of
the evidence or the law and no deficiency with respect to the fairness of the
hearing. In the result, this application for judicial review is dismissed.
[22]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
Email this Content