Docket: IMM-4541-15
Citation:
2016 FC 433
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 19, 2016
PRESENT: The Honourable
Mr. Justice Annis
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BETWEEN:
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EDWIN JOFFRE
FUEL MARTINEZ
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review made
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 [IRPA] of a decision made by a Refugee Protection Division
immigration officer [RPD or the panel], which concluded that the applicant
[Mr. Martinez] is not a Convention refugee or a protected person. The
applicant is attempting to have this decision set aside and have his file reevaluated
by another immigration officer.
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
[3]
The applicant is a citizen of Ecuador. He says
he arrived in Canada on June 10, 2015, the day he requested asylum. This
request was eventually denied on September 4, 2015.
[4]
Mr. Martinez is the third spouse of Ms.
Cabrera, a Columbian woman. Between March 4, 2001 and August 2, 2002, Ms.
Cabrera's father, first spouse and brother were apparently assassinated by the
Revolutionary Armed Forces of Colombia [FARC]. Ms. Cabrera then took refuge
in Ecuador in 2004. In 2005, her second spouse was apparently assassinated in
Columbia.
[5]
Mr. Martinez says he met Ms. Cabrera
for the first time on September 26, 2006.
[6]
On February 26, 2007, another one of
Ms. Cabrera's brothers was assassinated in Colombia.
[7]
On June 17, 2007, the applicant claims he was
threatened by two individuals who told him he should stop seeing
Ms. Cabrera. Mr. Martinez says he complained to the authorities
following this incident.
[8]
On August 14, 2008, Ms. Cabrera settled in
Canada after she was granted refugee status by the Canadian Embassy in Ecuador.
[9]
On April 16, 2009, during a trip to Ecuador,
Ms. Cabrera and Mr. Martinez got married.
[10]
In March 2015, the applicant claims he was
accosted, beaten and threatened because he had helped Ms. Cabrera's family
escape and settle in Ecuador. These are the circumstances under which the
applicant claims he resigned from his job and left the city.
II.
Analysis
[11]
The only question raised by this application is
whether it was reasonable for the panel to conclude that the applicant's
allegations that he had been threatened by FARC because of his relationship
with Ms. Cabrera and her family were not credible.
[12]
It is well established in law that the Court
must show restraint with respect to the panel's conclusions regarding
credibility because the determination of credibility "is the heartland of
the panel's jurisdiction" (Toma v Canada (Minister of Citizenship and
Immigration), 2014 FC 121, at paragraphs 910, citing
Mr. Justice Martineau in the matter of Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at paragraph 7).
[13]
The panel concluded that, generally speaking,
the allegations made by Mr. Martinez, an educated man employed as an
assistant business manager in a bank, were not credible because he was not able
to provide satisfactory explanations for the many contradictions and omissions
noted by the panel between his testimony, his Basis of Claim Form [BOC] and the
draft of his story in his agenda.
[14]
The applicant maintains that the panel erred in
carrying out a detailed examination of facts concerning questions that were
irrelevant or peripheral to his claim for refugee protection. He also maintains
that the panel did not consider his explanations regarding the errors he made
in his agenda notes.
[15]
Unless there are grounds for questioning an
applicant's testimony, it is presumed to be true. However, in this case, there
are grounds for questioning Mr. Martinez's testimony because of the
contradictions at the heart of his claim for refugee protection, specifically,
the date his relationship with Ms. Cabrera began.
[16]
Therefore, it was reasonable for the panel to
consider the applicant's credibility to be compromised because he was unable to
provide satisfactory explanations for the three contradictory dates he provided
as the start of his relationship with Ms. Cabrera, specifically September
2005, January 2006 and September 2006.
[17]
Moreover, the panel noted that Ms. Cabrera
had not mentioned Mr. Martinez in her application for permanent residence
in Canada in 2008, although he claims that they were in a commonlaw
relationship at that time. This fact on its own is not a deciding factor, but
it is taken in the context of the contradictory facts presented by the
applicant.
[18]
In light of these facts, the panel concluded
that corroborating evidence was needed to establish the existence of the
relationship between Ms. Cabrera and Mr. Martinez: Toure v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1388 at paragraph 11. It
was therefore reasonable for the panel to draw a negative inference from the
applicant's failure to provide documentary evidence to support his allegation
that he had been living with Ms. Cabrera at the time of the first incident
in June 2007, which, according to his testimony, led him to leave his home.
[19]
The applicant maintains that the panel erred in
drawing only negative conclusions in spite of the evidence presented that
corroborates his story; however, the applicant did not explain the nature of
the evidence that supposedly corroborates his story, not to mention the fact
that he has not submitted any evidence on this subject to the court file.
[20]
Moreover, the applicant did not submit any
objective evidence to support his allegations that he complained to the
authorities in 2007, and he did not explain why he was unable to obtain this
corroborating evidence.
[21]
The applicant also omitted significant facts
that he was unable to adequately explain. When the panel questioned him about
other incidents that occurred after those of June 17, 2007, he started relating
the incidents of February 2015. According to the narrative of facts in his
agenda, he apparently omitted an important incident that occurred in 2008. When
questioned about this omission, the applicant simply said: "Perhaps it was
nerves and confusion." A fairly inadequate reply.
[22]
Consequently, it was reasonable for the panel to
conclude that the applicant's credibility was tarnished as a result of the
contradictions and omission of important facts.
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