Date: 20040318
Docket: IMM-383-03
Citation: 2004 FC 391
BETWEEN:
JULIO OSCAR ESCUDERO SANCHEZ
CASTILLO FERNAN LUCY DE LOS MILAGROS
ANDRE ALONSO ESCUDERO CASTILLO
JORGE ANTONIO ESCUDERO CASTILLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated January 6, 2003, that the applicant and his dependants are not Convention refugees or "persons in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Julio Oscar Escudero Sanchez (the applicant), his wife, Lucy de Los Milagros Castillo Fernandez, and their minor children, Andre Alonso and Jorge Antonio (the dependants) are citizens of Peru. The applicant claims that he fears persecution on the basis of his membership in a particular social group. He also claims to be a "person in need of protection" because he would be subject to a risk to his life or to a risk of cruel and unusual treatment or punishment in Peru.
[3] The IRB determined that the applicant and his dependants were not Convention refugees or persons in need of protection because their story was not credible, because the applicant did not establish that the State was unable to protect him, and because the applicant's fear was unrelated to any of the five grounds listed in the Convention.
[4] The IRB found that the applicant was not credible because he had contradicted himself in his testimony and because some documentary evidence was inconsistent with his allegations. As a general rule, testimony is presumed to be true unless there are reasons to doubt its truthfulness. In Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that the tribunal's perception that the applicant is not a credible witness can amount to a finding that there is no credible evidence on which the claim could be based. In this case, the IRB determined that the applicant's story was not credible because he had contradicted himself on the fundamental aspect of the claim. A review of the file and, particularly, the hearing transcript, shows that the IRB considered the applicant's explanations but found them to be inadequate. In my view, the panel was entirely entitled to consider the relevant inconsistencies as it did (Parnian v. Canada (M.C.I.) (1995), 96 F.T.R. 142).
[5] The IRB also determined that the applicant had not established that the State was unable to protect him. The state should be presumed capable of protecting its nationals, unless the applicant adduces evidence to the contrary (Ward v. Canada (M.E.I.), [1993] 2 S.C.R. 689). In this case, the respondent, in paragraphs 18 to 36 of his supplemental memorandum, correctly argued that the applicants did not discharge their burden of proving, with clear and cogent evidence, that the Peruvian State was not able to protect them. I note, more particularly that, not only was the applicant unable to provide information about the people who were threatening him, as these people always remained unidentified, but that he remained consistently passive about the complaint that he had filed with the police.
[6] With respect to the lack of a connection with any of the five grounds of the Convention, it is the applicant's responsibility to show that the alleged persecution is linked with one of these (Rizkallah v. Canada (M.E.I.), [1992] F.C.J. No. 412 (QL) (C.A.)). In this case, the applicant claims to fear persecution from the mafia involved with pyrotechnics - mafia acting in complicity with the governmental authorities. The IRB found on the facts that the applicant was, rather, the victim of criminal acts, which has no connection with any of the grounds of the Convention. Given the decision, above, that it is not appropriate to intervene with respect to the panel's assessment of credibility and of the facts, I must also find that the panel's determination on the lack of a connection with any of the five grounds of the Convention is well-founded.
[7] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
March 18, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-383-03
STYLE OF CAUSE: JULIO OSCAR ESCUDERO SANCHEZ, CASTILLO FERNAN LUCY DE LOS MILAGROS, ANDRE ALONSO ESCUDERO CASTILLO, JORGE ANTONIO ESCUDERO CASTILLO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 10, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: March 18, 2004
APPEARANCES:
Angelica Pantiru FOR THE APPLICANTS
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Angelica Pantiru FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario