Date: 20020118
Docket: IMM-5118-00
Neutral Citation: 2002 FCT 60
BETWEEN:
WILLIAM DARIO TAMAYO ESTRADA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the September 13, 2000 decision of the Convention Refugee Determination Division ("CRDD" or "panel") rejecting the applicant's claim for Convention refugee status.
[2] The applicant William Dario Tamayo Estrada is a 26-year-old citizen of Columbia who claims a well-founded fear of persecution arising out of his perceived political opinion. The applicant submits that he is perceived as a "person who reports guerrillas to the police".
Background
[3] In September 1998, while he was a University student, the applicant and his mother were leaving the bank when they were intercepted in their car by gunmen. A gun was put to the applicant's head as the men searched the vehicle. When the gunmen found no cash, they took the applicant's credit cards and some documents before they fled. The applicant had been engaged in bank dealings with respect to his car, which is why he had documents rather than money in his possession. In fact, the applicant recognized one of the men who held him up as a man who had handed him a number for service a few minutes earlier in the bank. ("the Hold-up")
[4] The applicant reported this incident to the police. The applicant also identified one of the robbers as the man who worked in the bank and provided a physical description of him to the police.
[5] The applicant's Personal Information Form ("PIF") states that, a few days later, while he was waiting for his fiancé in a car on route 80, he saw three armed men run away from a business, shooting in the air. He recognized one of the men as the man who had handed him the number in the bank and later demanded money from him. The police arrived and questioned him. He went to the police station where he gave a description of the man he recognized and confirmed the identity of this man from police photographs. ("the Witnessing of a Robbery")
[6] Police advised the applicant that the robber he identified was an urban guerilla. They also told him that he may be in danger since guerillas usually take reprisal action when reported to the police. The applicant asked the police about protection and they suggested the applicant relocate his residence for his own safety. The applicant was not able to move right away and a number of threatening incidents ensued.
[7] Specifically, in November 1998, the applicant and his sister believed they were being followed in a shopping mall. The applicant alerted a security guard and the man fled. Following this incident, the applicant, his mother and his sister moved to their cousin's home outside of the city.
[8] In December 1998, while the applicant was driving his sister's car, it was hit from behind by a motorcycle carrying two men. One of the riders threatened them, assaulted the applicant and then they drove off. The applicant testified that, although he is not sure, he thinks that the person driving the motorcycle was also present when he had been held-up at gunpoint. ("the Threat and Assault by Motorcyclists")
[9] In January 1999, while in his sister's car, someone recognized the applicant, shouted "there he is" and shot at the car. Two shots hit the car and the claimant fled into nearby bushes. ("Gunshots to Vehicle")
[10] Three days later, the applicant received a notice for his own funeral in the form of a wreath and a note. The applicant took this as a signal that he was about to be killed. At this point he made arrangements to flee the country, which he did on March 2, 1999. ("Receipt of Funeral Wreath")
[11] The applicant also testified that others who have complained to police about guerillas have been killed. In particular, he brought one case involving a friend of his to the panel's attention. The applicant states that the police are powerless to protect people from these guerillas.
Decision under Review
[12] The panel accepted the applicant's evidence of the first incident. The panel believed that the applicant and his mother had been held up at gunpoint by guerrillas as they left the bank in September 1998. Further, they accepted that the applicant reported this incident to the police and provided a description of the robbers. However, the panel disbelieved the applicant's testimony with respect to the incidents that ensued. After his initial report to police, the panel found there had been no further contact with the guerrillas, no evidence of extortion, demands, or threats by the guerillas. Given these findings, the panel determined it was unnecessary to address issues of the applicant's perceived political opinion or membership in a particular social group.
Analysis
[13] The applicant submits the CRDD erred in law with respect to its findings regarding the credibility of the applicant's evidence. The applicant takes issue with eight of the panel's findings.
Witnessing of the Robbery
1) Inconsistency between the PIF and the oral testimony.
[14] The panel noted an inconsistency between the PIF and the applicant's oral evidence surrounding his witnessing of the robbery. The PIF indicates the applicant was waiting for his fiancé in a car when he saw three men running away after robbing a business establishment. At the hearing, the applicant stated he was standing on the street, close to the getaway car. The panel asked the applicant to confirm he had been standing on the street and he did. The applicant says this discrepancy became central to the panel's finding, yet, they did not put this inconsistency to him nor did they ask him to explain it.
[15] In his oral evidence, the applicant consistently makes reference to the fact that he was standing on the street near his car. The only reference to "sitting" was in his PIF where he writes "I was waiting for my fiancé in a car on route no 80...". The applicant states that, if questioned, he could have explained that he drove to meet his fiancé and then had stood by the car to wait for her.
[16] The applicant argues that he should be afforded an opportunity to explain inconsistencies between his PIF and his oral testimony if the panel is to rely on them to make an adverse finding (Bayrami v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1167 (F.C.T.D.). Then, once the claimant offers an explanation, that explanation must be considered by the panel. Any rejection of the applicant's explanation must be reasonable.
[17] The respondent maintains that there is no requirement that the CRDD put contradictions to the applicant when he is represented by counsel, as in this case. The respondent relies on the following passage from the decision of Gibson J. in Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 at paragraph 17:
...I think it is fair to assume that any contradictions in the applicant's testimony would have been as apparent to counsel as to the CRDD members. In such specific circumstances, to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconsistencies without coaching from the CRDD members.
[18] In Ngongo v. Canada (The Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627, Tremblay-Lamer J. held that whether the claimant is represented by counsel is just one of many factors that interact to determine if an inconsistency or contradiction in the applicant's testimony should be put to him. Other considerations identified by Tremblay-Lamer J. were whether the inconsistency was obvious or arose out of a careful examination of the transcript, whether the claimant communicated through an interpreter and whether there was an actual contradiction.
[19] For the CRDD to base its credibility findings on inconsistencies in the evidence, the inconsistencies must be serious and must relate to matters that are relevant to the applicant's claim. In my opinion, the inconsistency noted here is not one that is so readily apparent that counsel should have been expected to address it at the hearing.
[20] To conclude, this inconsistency, if the Panel intended to rely on it, should have been put to the applicant, who may very well have easily explained it.
2) Implausibility of the applicant's account
[21] The panel found the applicant's testimony that he had identified one of the robbers to the police to be implausible. The applicant indicated at the hearing that he was reluctant to help the police, so the panel found it improbable that he had done so. The panel also concluded it was equally improbable that the police would have approached the applicant, given his location of either standing on the street or sitting in his car. The applicant argues that the fact the police questioned him is logical since the applicant had witnessed the entire incident. At the moment of the getaway, the police arrived. When questioned by the police, the applicant told them he had seen everything. They invited him to the police station to identify the robbers.
[22] The panel found it implausible that the applicant would volunteer information to the police and equally implausible that the police would have sought the assistance of the applicant. They did not think it likely that the police would have asked the applicant what he had seen. The applicant submits that when police officers arrive at a crime scene, a common investigative technique is to question those in the vicinity as to what they have witnessed. I agree. Even if the applicant had been reluctant to help the police, once questioned by them, I do not find it implausible that he would have recounted what he had seen.
[23] In the present case, there is nothing in the documentary evidence that contradicts or renders implausible the applicant's evidence concerning how he came to be questioned by the police following his witnessing of the robbery. Further, the applicant's explanation that it is a common investigatory technique of the police to question people standing on the street who may have witnessed a crime, is entirely plausible.
[24] It is well-established that when a claimant swears to the truth of certain facts, this creates a presumption of truth, unless there is some reason to doubt their truthfulness (Maldonado v. Minister of Employment and Immigration), [1980] 2 F.C. 302 at 305). Further, when the CRDD makes a finding of credibility based on the implausibility of the claimant's story using "... extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences ...", the CRDD is in no better position than this Court (Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.)). I find there is nothing implausible about the applicant's account of his witnessing of the robbery.
3) Negative inference from failure to provide documentary evidence.
[25] The panel drew a negative inference from the fact the applicant provided no supporting documentary evidence to show that he had been to the police station to identify the robbers. The applicant explained that since he was not the complainant, but a witness, he could not make a formal complaint. Further, he noted that the people who had been robbed did not make a formal complaint; thus, no written report was available.
[26] The applicant submits that it is inappropriate for a tribunal to draw an adverse inference strictly on the basis of a failure to produce documentary evidence. The Federal Court of Appeal in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) held that the failure to produce supporting documentation cannot reflect adversely on the applicant's credibility in the absence of evidence which contradicts the applicant's testimony.
[27] The applicant has stated that there was no police incident report completed for the second incident because the victims of the robbery had not filed a formal complaint. The transcript of the hearing at page 29 demonstrates that the applicant explained to the tribunal members that there was no report made. Still, the tribunal in its reasons at page 5 held that it drew a negative inference because the claimant failed to provide "... evidence that he made efforts to produce some corroboration ...". This comment by the panel completely ignores the explanation given by the applicant that no such documentary evidence existed.
Threat and Assault by Motorcyclists
4) Inconsistency between the PIF and the oral testimony.
[28] The panel found the applicant was inconsistent in his evidence about the attack by persons riding a motorcycle. His PIF states:
... Two men were in the motorbike. One of them got off the bike and approached me from the left side of the car...
[29] At the CRDD hearing, the applicant said the man on the back of the bike got off and the motorcycle driver drove the bike up to the driver's window. Again, the applicant states this perceived inconsistency was not put to him during the hearing, therefore, he could not address it. The applicant also submits that this type of error may be due to translation difficulties; different interpreters translated the PIF and his testimony at the hearing.
[30] The inconsistency between the applicant's PIF and his oral testimony is with respect to which man (on the front or back of the bike) threatened him. In his PIF the applicant described one man getting off the bike and approaching him on his left. At the hearing he clarified. He confirmed under questioning that the man in the back got off and the man driving the motorcycle drove up beside his window, assaulted him, and made some verbal threats.
[31] The Federal Court of Appeal in Attakora, supra, held that the CRDD should not be over-vigilant in its examination of evidence, especially in cases where the claimant is testifying with the assistance of an interpreter. It is accepted that the panel must exercise caution when comparing statements made by a claimant on different occasions and through different interpreters.
[32] The applicant was clear throughout that two men approached him on a motorcycle, and that one of the men assaulted and verbally threatened him. The point focussed on by the panel, whether it was the man on the front or the back of the bike who threatened him, is an insignificant and irrelevant detail that could have been mistakenly changed in the interpretation of the applicant's evidence.
5) Inconsistencies in the wording and sequence of threats.
[33] With respect to the same incident, the tribunal concluded that the applicant changed the sequence of the threat, the beating, and the wording of the threat delivered to him. The applicant states any inconsistencies in wording were probably due to interpretation and that any discrepancies were insignificant. The applicant also notes that the language in his PIF was approximate.
[34] The CRDD made much of the fact that the applicant rendered slightly different versions of the events involving the motorcyclist. At the hearing, the following exchange took place:
RCO: When you were discussing your December ‘98 incident, when you were hit from being in your sister's car, you told us you were hit from behind and a guy got off his motorcycle. He hit you in the face --
CLAIMANT: It was not the same one that got off the motorcycle.
RCO: Okay. You were approached by a man who hit you with his gun in the nose.
CLAIMANT: That was the one who was driving.
RCO: So he hit you first and then he said "until we meet again" that was your testimony?
CLAIMANT: Yes.
RCO: Is that the correct order, the way things happened? He hit you first and then said "until we meet again"?
CLAIMANT: Yes.
RCO: In your narrative you say that they said "so we meet again, finally found you". And then some derogatory words. And then he hit you on the nose with the gun, which sounds like a different order of events.
CLAIMANT: That was probably due to the translation.
RCO: So what was the correct way it happened?
CLAIMANT: Do you want me to describe the whole thing?
RCO: The order of events that we've been discussing.
CLAIMANT: I was hit in the back of the with something -- I don't know -- a motorcycle, I don't know. The man came up -- started coming up to the window, the guy in the back got off. The man driving stopped the motorcycle right next to my window. He hit me in the face, like I've described and then he said, "until we meet again".
[transcript at pages 35-36].
[35] The panel returned to the issue later and questioned the applicant at length about whether the gunman said "so we meet again" as noted in the applicant's PIF or "until we meet again" as the applicant testified orally. The applicant submits that this difference can be attributed to interpretation difficulties. In my opinion, this explanation is supported by the transcript of the hearing at page 22:
COUNSEL: I want to know the meaning of "Until we meet again", okay? Does that - what does that mean to you, "until we meet again"?
CLAIMANT: That they had been looking for me and that they had found me in the car.
COUNSEL: All right. Now, in the - words that are used in the written statement are: "So we meet again. Finally found you." Now, that seems to be consistent with what you just described, your meaning: Looking for me and found me in the car.
In English, to describe that as its been translated here, "Until we meet again," that would mean, to me, that somebody is saying, "Goodbye, until we meet again", subsequently, okay?
CLAIMANT: Because this is - what they meant was that they have been looking for me and they had found me. Sorry, I have to intercede here, because I -
WENUK: Sorry. I don't think we need your submissions.
INTERPRETER: No? Okay.
WENUK: No. If you could just translate.
INTERPRETER: I just did.
WENUK: Thank you.
EUSTAQUIO: I think that's what he was trying to say, that he was completing what he heard.
WENUK: That's fine.
EUSTAQUIO: That's fine.
INTERPRETER: Yeah, that's - I was just translating -
COUNSEL: Okay, that's fine. Okay.
INTERPRETER: As well as I could, the phrase. It's not an easy phrase to translate, but I did it as well as I could.
[36] Therefore, this exchange makes it obvious that the same idea expressed in the PIF as "so we meet again" was expressed orally as "they were looking for me and they found me". The interpreter during the oral hearing had used the phrase "until we meet again". Later, when the point was stressed, the interpreter admitted that the phrase was a difficult one to translate. I find that no inconsistency exists with respect to the wording of the threat.
[37] The panel also observed that some of the threats were out of sequence. The PIF did not indicate the order of the two events - the assault and the verbal threat. It simply noted that both occurred. Again, it seems that the panel was over-zealous in its scrutiny of the applicant's evidence. I find that no inconsistency exists with respect to the sequence of the threats delivered.
6) Internal inconsistency with respect to recognizing the man on the motorcycle.
[38] The tribunal wrongly concluded, in the applicant's view, that the applicant's testimony was inconsistent with respect to having recognized the individual driving the motorcycle. The panel noted: "He also testified that he did not recognize the men. However, he then testified that the person driving the motorcycle (i.e. not the one who was at the window) was involved in the robbery".
[39] The panel found that the applicant's oral evidence was inconsistent on the point of whether or not he recognized the individual who assaulted him on the motorcycle. The following is an excerpt of the transcript from the beginning of the applicant's testimony on this incident at page 20:
COUNSEL: Did you recognize either of these men who were involved in this incident?
CLAIMANT: No.
COUNSEL: Did they, to your knowledge, have any connection with anything that happened previously that we've talked about?
CLAIMANT: Yes.
COUNSEL: Can you explain why you say that?
CLAIMANT: Well, I'm just going to describe the incident...
[40] The applicant expressed the view that the incident itself, especially the discussion of the words spoken by the attacker, "so we meet again", was evidence of the connection between this incident and the past incidents. Further, the applicant stated at page 22 of the transcript: "I'm not sure, but I think the person who was driving the motorcycle, I think it was the same person who was driving the motorcycle in the first incident". At the CRDD hearing, his counsel explained that while the applicant did not immediately recognize the men, once the man came to the window and delivered the threat, the applicant realized that he was the same man who had driven the motorcycle in the first incident. Still, the applicant admits that he is not sure if it was the same man on both occasions.
[41] I find the claimant's evidence on this point to be particularly credible. He did not try to embellish his answers and he was willing to provide answers that were not necessarily in his favour. The panel's error on the previous point (assuming that the man on the back of the motorcycle was the one that delivered the threat), affected their finding on this point. A careful analysis of the applicant's testimony does not reveal an inconsistency.
Gunshots to the Vehicle
7) Failure to corroborate testimony with documentary evidence.
[42] The tribunal disbelieved the January 1999 incident because there was no mention in the documentary evidence of the reason behind the damage to the applicant's vehicle. However, a letter dated November 12, 1999, which was produced before the panel stated: "I confirm that the Chevrolet Sprint vehicle with plates AVL 293, property from Mr. William Dario Tamayo Estrada, was received at this auto repair for repair to gunshots on January 18, 1999." The applicant submits that this is a clear error on the part of the panel.
[43] The reasons state at page 6:
The panel does not accept the evidence that in January 1999, a car passed the claimant's stopped vehicle and because someone in the car recognized the claimant, the car turned around and someone shot at the claimant's vehicle. The claimant produced a receipt from an auto shop that he alleges corroborates his story. However, the panel notes that the receipt is for damage to his sister's car and does not offer any explanation as to how the damage occurred. Even if the panel accepts there were shots to the car, the panel gives the receipt no weight as to establishing the cause of the damage.
[44] In my view, the panel has misconstrued this piece of evidence. The panel states that the receipt is for damage to the car but stated that it does not offer any explanation as to how the damage occurred. It is clear from the panel's statement "even if the panel accepts there were shots to the car" that the panel erred with respect to this piece of evidence. The document clearly establishes that the vehicle was repaired because there was damage caused by gunshots.
[45] Perhaps the panel intended to indicate that the receipt is not evidence of how the applicant's car came to be riddled with gunshots. This may be true, but the panel has the applicant's oral testimony as to the circumstances in which his vehicle sustained the damage. The receipt nonetheless corroborates the applicant's evidence with respect to the fact that his vehicle sustained damage from gunshots in mid-January 1999.
[46] Where a claimant produces a document that supports his testimony, the panel is under an obligation to consider that document. In the present case, the panel accorded the document no weight because they found that it did not corroborate the applicant's testimony. I disagree. The panel misconstrued this document and disbelieved the applicant's account of this incident as a result.
Receipt of Funeral Wreath
8) The panel concluded the wreath incident never occurred because it had disbelieved other aspects of his story.
[47] The panel stated at page 7 of the reasons:
... Given the findings with respect to the other allegations, the panel finds there is no reason anyone would send him a death threat and therefore does not accept this evidence as credible or trustworthy...
[48] The applicant argues that since there are good reasons to impugn the findings of the panel with respect to the other incidents, this finding cannot stand.
[49] The respondent's position is that, considering the decision and reasons as a whole, together with the evidence led at the applicant's hearing, the CRDD's finding that the applicant did not present enough credible and trustworthy evidence to establish the elements of his claim, was reasonable. The respondent argues that the internal contradictions, inconsistencies, and implausibilities in the central elements of the applicant's claim are sufficient to refuse the applicant's claim. In the respondent's view, the CRDD's finding is reasonable and supported by the evidence.
Conclusion
[50] While I am cognizant of the high degree of deference that should be accorded to credibility findings, in the present case, the panel failed to give the applicant an opportunity to explain perceived inconsistencies, found inconsistencies where none existed, and misconstrued the evidence. Additionally, the panel drew inferences from the evidence that, in my view, were not reasonable.
[51] For these reasons, the application for judicial review is allowed, the September 13, 2000 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
January 18, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5118-00
STYLE OF CAUSE: William Dario Tamayo Estrada v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 11, 2001
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN
DATED: January 18, 2002
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Marissa Bielski FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman, Waldman & Associates FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada