Date: 20020704
Docket: IMM-861-01
Ottawa, Ontario, the 4th day of July 2002
Present: The Honourable Mr. Justice Pinard
BETWEEN:
CASTRO CHAVEZ Carlos Enrique
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated February 1, 2001, of the Convention Refugee Determination Division determining that the applicant is not a Convention refugee is dismissed.
YVON PINARD
JUDGE
Certified true translation
Sophie Debbané, LLB
Date: 20020704
Docket: IMM-861-01
Neutral citation: 2002 FCT 738
BETWEEN:
CASTRO CHAVEZ Carlos Enrique
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision dated February 1, 2001, by the Convention Refugee Determination Division determining that the applicant is not a Convention refugee as defined by subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
The applicant is a citizen of Peru. He alleged that he was persecuted for reasons of political opinion.
The Refugee Division refused to grant the applicant refugee status, finding that the evidence consisted of implausibilities, inconsistencies, omissions and a lot of confusion, and determining that the explanations given were unsatisfactory.
The applicant criticized the Refugee Division for considering the omissions in his Personal Information Form (PIF) in assessing his credibility on the ground that, at the outset of the hearing, he had stated that he needed to add some things to his PIF and that he would do so during his testimony.
In terms of credibility, it is worth recalling that the Refugee Division is in the best position to gauge the credibility of a person claiming refugee status, as was established by the Federal Court of Appeal in Aguebor v. M.E.I. (1993), 160 N.R. 315:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
Therefore, it is not for this court to substitute itself for the Refugee Division unless the applicant can show that its decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C., 1985, c. F-7).
Moreover, in Grinevich v. Minister of Citizenship and Immigration (April 11, 1997), IMM-1773-96, I had the opportunity of pointing out:
Where a refugee claimant fails to mention important facts in his or her PIF, this may legitimately be considered by the Board to be an omission that goes to lack of credibility. . . .
Here, the reasons of the Refugee Division are stated in clear and unmistakable terms (Hilo v. M.E.I. (1991), 15 Imm.L.R. (2d) 199, at page 201 (F.C.A)). The applicant in fact failed to mention in his PIF several important facts central to his claim, specifically: the fact that he underwent medical treatment following the attack of September 3, 1999, the anonymous phone calls at his residence following the attack of September 3, 1999, and the fact that his wife does not live in Lima.
Given the numerous omissions in the applicant's PIF and their importance with respect to his claim, I am of the opinion that the Refugee Division was right to determine that he lacked credibility.
The applicant argued that the inconsistency between his testimony and the police report following the attack that he had allegedly suffered on September 3, 1999, cannot be held against him because the report was written by police officers other than those who took his complaint.
Having examined both the police report (Exhibit P-7) that was before the Refugee Division and the transcript, I am satisfied that the Refugee Division had sufficient evidence not to believe that the applicant had been the victim of an attack on September 3, 1999. It is true that the Refugee Division must consider explanations given and credibility can be questioned only if the explanations given are unconvincing (Hue v. Canada (M.E.I.), [1988] F.C.J. No. 283 (F.C.A.) (QL)). Here, the Refugee Division considered the explanations that the applicant had given but it simply did not find them sufficient in the circumstances. In my opinion, this assessment of the evidence by the Refugee Division is not unreasonable.
The applicant ultimately criticized the Refugee Division for its assessment of the documents filed by the applicant, in particular the one entitled [TRANSLATION] "Steadiness of work". In the absence of clear and convincing evidence to the contrary, it must be assumed that the Refugee Division considered all of the evidence (see Florea v. Minister of Employment and Immigration (June 11, 1993), A-1307-91).
In Tawfik v. M.E.I. (1993), 137 F.T.R. 43, Mr. Justice MacKay held that:
Generally the weight to be given to evidence is a matter for the tribunal's proper discretion. Unless that discretion can be said to be unreasonably exercised, this Court will not intervene.
In this case, the Refugee Division stated explicitly in its reasons what the documentary evidence consisted of and said that that evidence allowed it to draw certain conclusions such as the absence of credibility and the lack of subjective fear in the applicant.
The Refugee Division's perception that the applicant is not credible effectively amounts in this case to a finding that there is no credible evidence that could justify his claim for refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (F.C.A.)).
For all of these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
July 4, 2002
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-861-01
STYLE OF CAUSE: CASTRO CHAVEZ Carlos Enrique v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 6, 2002
REASONS FOR ORDER OF: The Honourable Mr. Justice Pinard
DATED: July 4, 2002
APPEARANCES:
Serban Mihai Tismanariu FOR THE APPLICANT
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serban Mihai Tismanariu FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario