Date: 20020104
Docket: IMM-6466-00
Neutral citation: 2002 FCT 4
Ottawa, Ontario, January 4, 2002
BEFORE: EDMOND P. BLANCHARD J.
BETWEEN:
JANE ROCIO AREVALO COLLAN
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on November 23, 2000.
Statement of facts
[2] The plaintiff was born at Lima, Peru on April 28, 1973 and is a citizen of Peru. On January 4, 1992 she married Sandro Villanueva-Herrera and on July 4, 1992 gave birth to Sandra Villanueva-Arevalo.
[3] The plaintiff worked as a volunteer at the Santa Catalina Labouré church for the St. Vincent de Paul congregation in Peru for four years. The plaintiff was active both in duties relating to the dining room and in spreading the gospel in the community, especially among young people. The plaintiff also worked in a rehabilitation centre for youth having family, social, drug or delinquency problems.
[4] On December 25, 1997, while she was participating in the distribution of food and toys to poor families, a couple came to the church and asked to see the plaintiff privately. This couple apparently asked her to do community work for the poor and persons oppressed by the government. The plaintiff simply told them that her schedule was full as she was busy with her work and her family. When the couple in question made threats, the plaintiff feared for her life and applied for a visa to Canada, but the visa was denied.
[5] In April 1998, a youth about 16 years old came to the dining room to give her an envelope addressed to her. The letter said, inter alia, [TRANSLATION] "Long live the guerrilla war: with weapons and the masses we will gain power" and [TRANSLATION] "We will struggle together against the Chinese dictatorship". The letter also contained the hammer and sickle symbol. The plaintiff gave this letter to the Peruvian authorities and made an official deposition.
[6] In May 1998, when the plaintiff and her husband were heading for the church on a motorcycle, they were hit at the back of the motorcycle by an unidentified vehicle. They both suffered serious injury. A week after this incident, the plaintiff said she received a letter telling her that her accident was the result of her refusal to co-operate and that worse was to come for her and her family.
[7] Following this incident her husband asked her to give up working as a volunteer at the church. Further, the plaintiff submitted, this considerably affected her husband's personality: he became violent with her, accusing her of putting their lives in danger. Since September 1998, the plaintiff has been separated de facto from her husband. He currently has custody of their daughter.
[8] Following their separation the plaintiff left the marital residence and went back to live with her parents. She also considerably reduced her voluntary work for the church.
[9] In December 1998, when the plaintiff and two nuns were preparing for Christmas, three individuals, two men and a woman, entered the church and made death threats against them if they refused to collaborate in the war against the government. According to the plaintiff, they went to the police station to make a statement but the police officers told them to come back after the holidays.
[10] In January 1999 the plaintiff gave up her voluntary work and in February 1999 left Lima to go and live with her grandparents in Arequipa. She returned to Lima in May 1999 to meet with people who would help her to leave Peru.
[11] On July 25, 1999, the plaintiff left Peru for Cuba and remained there until August 1999.
[12] On August 4, 1999, the plaintiff came to Canada and claimed refugee status since she feared persecution by the terrorists who wanted to recruit her against her will.
[13] On September 12, 2000, the hearing before the Refugee Division was held and on September 23, 2000, the Refugee Division concluded that the plaintiff was not a refugee within the meaning of s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
Refugee Division's decision
[14] In dismissing the plaintiff's application, the Refugee Division concluded that her testimony was not credible. The Refugee Division noted:
[TRANSLATION]
After reviewing both the documentary and oral evidence we consider that the claimant is not a Convention refugee.
. . . . .
We did not believe the claimant's story and consider that actually she fabricated the entire story in order to obtain status in Canada.
Standards of review
[15] The case at bar involves judicial review of a decision of the Refugee Division. The Supreme Court of Canada has held that in such circumstances the applicable standard on points of law is that of correctness. As Bastarache J. said in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 50: "I conclude that a correctness standard applies to determinations of law by the Board". Further, it is worth noting that the standard of review in the assessment of facts continues to be the patently unreasonable one. In fact, many decisions of this Court have confirmed that Board members are in the best position to assess the testimony of plaintiffs. As the Federal Court held, per Décary J.A., in Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C. No. 732, at para. 4 (C.A.):
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.
The conclusion that emerges from that case is that so long as the Board members' factual interpretation relating to s. 2(1) of the Immigration Act is not patently unreasonable, it is not this Court's function to intervene through judicial review.
Analysis
[16] The plaintiff first submitted that the tribunal acted unreasonably in attaching no evidentiary weight to certain of her documents, in particular the three informations laid with the police and the letter from the Santa Catalina Labouré parish. According to the plaintiff, these documents dealt with facts essential to her claim and were dismissed following a microscopic analysis of the said documents.
[17] The three informations from the National Police of Peru were rejected by the Refugee Division since one of those documents, that concerning the traffic accident, had a different seal from those placed on the other two informations. The Refugee Division also noted that the three exhibits were all signed by the same person and, based on these findings of fact, the Refugee Division concluded that the documents had no evidentiary weight. The Refugee Division further noted that the seal on the original of the letter from the Santa Catalina Labouré parish contained certain irregularities. Despite the plaintiff's submissions that the Refugee Division's comments on these documents resulted from a microscopic and unreasonable analysis, I conclude that the Refugee Division had sufficient evidence on the basis of which it could doubt the authenticity of the documents. I am persuaded that it was not shown that the Division's finding was patently unreasonable with respect to these documents.
[18] Further, the plaintiff argued that the Refugee Division erred in not considering her sworn testimony, in particular the testimony about her parish work. The plaintiff maintained that the Refugee Division appeared to regard the absence of documentary evidence as a complete lack of evidence on this matter. In its reasons the Refugee Division concluded [TRANSLATION] "This absence of evidence at the hearing regarding her involvement undermines her credibility".
[19] I agree with the defendant's arguments. Although a presumption exists that sworn testimony is true if there is no evidence to the contrary, the Refugee Division also had the benefit of hearing the plaintiff's viva voce testimony, assessing her plausibility and determining the credibility of her story. It is up to the Refugee Division to determine the plausibility of all the evidence, namely the sworn statements and the evidence given orally at the hearing, and to draw the necessary conclusions from it. In the case at bar, the Refugee Division did not believe the plaintiff's story and in my view, based on the evidence, that conclusion is not so unreasonable as to require this Court's intervention.
[20] The plaintiff further argued that the Refugee Division erred in questioning the plaintiff's credibility because the letter from the parish did not mention the events described in her PIF, regarding the threats which she said she received, and the person signing the letter was aware of them. On this point, looking at the evidence as a whole, I feel that this conclusion was not patently unreasonable. Further, the Refugee Division attached no evidentiary weight to this letter from the parish because of certain irregularities in the seal placed upon it. Earlier in these reasons, I indicated that there was sufficient evidence to support the Refugee Division's doubt as to the authenticity of this letter.
[21] After considering all the evidence on this point, namely the plaintiff's voluntary work, I feel that the Refugee Division's conclusion was not patently unreasonable.
[22] The plaintiff also submitted that the Refugee Division made an error when it concluded that her credibility had been undermined as she had failed to mention she had problems with the persecuting agent, the Shining Path. The Refugee Division noted that the plaintiff did not mention in her PIF that she had problems with the Shining Path. When questioned about this at the hearing, she explained at length that it was only necessary in Peru, since in Peru the names would be recognized, but elsewhere people only spoke of [TRANSLATION] "terrorist groups". That explanation contradicts the fact that in her depositions the plaintiff also did not make it clear to the police of her country that she had problems with the Shining Path. According to her reasoning, she should have made this clear. In my opinion, that contradiction allowed the Refugee Division to conclude as it did. In Kumar v. M.E.I., [1993] F.C.J. No. 219, on line: QL (F.C.A.), Décary J.A. said "It was the tribunal's duty to draw its own conclusions on the contradictions found in the testimony, as it was also responsible for assessing the plausibility of what was said".
[23] The Refugee Division noted that the plaintiff's conduct was inconsistent with that of a person who said she feared persecution. According to her own testimony, she was threatened in 1997. It was not until February 1999 that she left her town and July 25, 1999, that she left her country. The Refugee Division did not accept the plaintiff's explanation that she was completely devoted to the church and felt contradictory sentiments. It was also considered that her child would have also been threatened since May 1998. In Rahman v. M.E.I., A-1224-91 (F.C.A.), Hugessen J.A. said [TRANSLATION] "It seems clear to the Court that the Division did not believe the appellant because it saw major contradictions between his actions and his statements. This conclusion is one that is within the tribunal's jurisdiction and the Court cannot intervene unless it was arrived at unreasonably, which certainly is not the case here. The appeal will be dismissed". In the case at bar the Refugee Division found that the plaintiff's conduct since 1997 was inconsistent with a person fearing persecution and did not believe the plaintiff's story. In my opinion, this conclusion was not patently unreasonable.
[24] In the case at bar, based on the evidence presented to the Refugee Division, I consider that the conclusions and inferences drawn by it were not so patently unreasonable as to require this Court's intervention.
[25] For all these reasons, the application for judicial review will be dismissed.
[26] None of the parties suggested the certification of a serious question of general importance arising out the application for judicial review. No question will be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is dismissed.
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Edmond P. Blanchard
Judge |
Certified true translation
Suzanne M. Gauthier, LL.L Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6466-00
STYLE OF CAUSE: JANE ROCIO AREVALO COLLANA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 28, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: JANUARY 4, 2002
APPEARANCES:
FRANÇOIS MILO FOR THE PLAINTIFF
DANIEL LATULIPPE FOR THE DEFENDANT
SOLICITORS OF RECORD:
FRANÇOIS MILO FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA