Docket: IMM-810-13
Citation: 2013 FC 1019
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, October 8,
2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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NICANOR GUILLERMO SIVIPAUCAR AYQUIPA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division
(RPD), rendered on December 17, 2012, in which the RPD determined that the
applicant was neither a Convention refugee nor a person in need of protection
under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
II. Facts
[2]
The applicant, Nicanor Guillermo Sivipaucar Ayquipa,
is a citizen of Peru, born in (Rimac) Lima, in 1955.
[3]
In his Personal Information Form, the
information showed that he was in the United States in November 1999 and lived
in the United States illegally until August 2008. In August 2008, the
American authorities deported him to Peru (but in reality, according to the
complete history, he was in the United States for 25 years).
[4]
On his return to Peru, the applicant attested
that he went to live with his father in Lima.
[5]
After one month in the country, the applicant
stated that he began to be targeted by two criminal gangs (Los 28 and Los
Destructores). These two gangs allegedly extorted money from the applicant on
five occasions from September 2008 to September 2009.
[6]
The applicant stated that he complained to the
police on two occasions in July and August 2009, but the authorities did
nothing for him.
[7]
The applicant was found guilty of crimes that he
committed on three occasions in the United States for which he was required to
pay fines and be under probation two times.
[8]
Before coming to Canada, he went through
Ecuador, Venezuela, Syria and Jordan. On September 30, 2009, the applicant
arrived in Canada. He made a refugee claim the same day.
III. Decision
under judicial review
[9]
After an analysis of all the evidence, the RPD
found that the applicant was not a refugee or a person in need of protection.
The RPD found that the applicant was not a credible witness on the essential
facts of his refugee claim and, thus, had not established that there was a [translation] "serious
possibility" that he would be persecuted.
[10]
In particular, the Board based its negative
credibility finding concerning the applicant on the following:
a)
the applicant's lack of spontaneity during the
hearing, specifically as regards his problems with the criminal gangs;
b)
the addition of new facts regarding the
friendship between the police and the criminal gangs that was not in his
Personal Information Form (PIF);
c)
contradictions in his testimony in relation to
the statement that he allegedly filled out for his complaint with the police;
d)
an implausibility in his testimony that he would
allegedly be found by the criminal gangs because he had lighter skin after living
in the United States for 10 years.
IV. Issue
[11]
Did the RPD err in basing its decision on
erroneous findings of fact, made in a perverse or capricious manner or without
regard to the evidence before it?
V. Relevant
legislative provisions
[12]
Sections 96 and 97 of the IRPA apply in this
case:
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Convention refugee
96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or punishment
if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
Person in need of protection
(2) A person in Canada who is a member
of a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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VI. Standard
of review
[13]
The standard of review that applies to
credibility findings is reasonableness (Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315, [1993] FCJ No 732
(QL/Lexis) (FCA); Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190).
VII. Positions
of the parties
[14]
In his memorandum, the applicant stated that his
testimony was [translation]
"short and spontaneous, without any contradictions" and that the RPD
erred in fact and in law, by basing its decision on erroneous findings of fact,
made in a perverse or capricious manner or without regard to the evidence
before it. Further, he argues that his life is still in danger and that he
cannot return to Peru.
[15]
The respondent submits that the RPD’s decision
is reasonable. The respondent stated that the applicant's testimony contained
implausibilities, contradictions and omissions, which seriously undermined his
credibility.
[16]
Further, the applicant submitted that it is well
established that the RPD’s role is to assess the credibility and evidence of a
refugee claimant and the explanations relating to the implausibilities,
contradictions and omissions in his application (Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 00; Cortes v
Canada (Minister of Citizenship and Immigration), 2009 FC 583).
Therefore, the RPD, as a specialized tribunal and decision-maker, is in a
better position to determine these issues; and it is not up to the Court to
intervene in these circumstances.
VIII. Analysis
[17]
It is well established that credibility findings
demand a high level of judicial deference and should only be overturned in the
clearest of cases (Khan v Canada (Minister of Citizenship and Immigration),
2011 FC 1330, at para 30).
[18]
The Court should not substitute its opinion for
that of the decision-maker unless it finds that the decision was based on
erroneous findings of fact made in a perverse or capricious manner or without
regard for the material before it (Bobic v Canada (Minister of
Citizenship and Immigration), 2004 FC 1488, at para 30).
[19]
In this case, it was up to the RPD, as a
specialized tribunal, to assess the applicant's credibility and evidence and
the explanations provided by the applicant with respect to the
implausibilities, omissions and contradictions that appear in the evidence. It
was also up to the RPD to draw negative inferences with respect to the
contradictions between the PIF and the testimony.
[20]
The Court finds that the RPD’s reasons are
sufficient to allow the Court to understand the reasoning that led to its
decision as to the applicant’s credibility. While the decision is relatively
brief, it clearly describes the applicant’s responses at the hearing and the
specific factors that led to its negative finding that the applicant was not
credible.
[21]
The RPD did not consider to be satisfactory the
reasons given by the applicant to explain why he was targeted by criminal gangs,
or his explanations of the inconsistencies in his complaint to the police (i.e.
the addition of a new fact central to the claim and the contradictions in his
testimony). This Court confirmed at several occasions that the contradictions
and omissions with respect to the central elements in a PIF may affect the
credibility of a party or all of a testimony. The Court considers that the
analysis was not unreasonable. It was clear and unequivocal, given the evidence
on the record.
[22]
On the applicant’s spontaneity, the Court felt
that the RPD also drew reasonable negative findings as to the applicant’s
credibility. In his testimony, the applicant was very late in mentioning his
problems with the Los 28 and Los Destructores gangs. The RPD asked him several
times why he could not return to Lima, Peru, and each time he declared that
he could not return for economic reasons; specifically a lack of work (transcripts
at pp 24, 26 and 27). The applicant also explained that he could also not
return to Cusco, Peru, because there were [translation]
“many guerrillas” (transcripts at p 25), or to Chiclayo, Peru, because there
would be no [translation] “friendship
there” (transcripts at p 26). It was only after his counsel asked him to speak
more specifically about his problems in Lima that the applicant mentioned the criminal
gangs (transcripts at p 28). The Court considered that the applicant’s
lack of spontaneity seriously affects his credibility.
[23]
Although the Court feels that the RPD may have
conducted a very detailed analysis of the applicant’s testimony regarding the
signature of her statement to the police (Decision at para 13 and 14), the
Court does not consider that it is a sufficiently important reason to amend the
decision. The applicant’s testimony contained other contradictions, omissions
and implausibilities on essential points of the refugee claim.
[24]
On the whole, the Court found that the RPD’s
reasons were transparent, intelligible and based on the evidence in the record.
IX. Conclusion
[25]
For all the above reasons, the applicant’s
application for judicial review is dismissed.
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