Federal Court Decisions

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Date: 20051209

Docket: IMM-73-05

Citation: 2005 FC 1681

Ottawa, Ontario, December 9, 2005









[1]                This is a claim for protection made by Edgar Hugo Gaona Montenegro (the "Applicant"), a 32-year old citizen of Peru. He claims refugee protection due to his fear of returning to Peru. The bases of his fear are the actions of "Sendero Luminoso" (the "Shining Path") as well as fear of the "mafia" of Fujimori.

[2]                The Applicant was employed as a security guard for a cargo ship in Peru. Due to this position, he was subjected to threats from the Shining Path, since August 15, 2003. The members of this terrorist group asked the applicant many questions and informed him that the cargo ship was carrying weapons. They asked him to join the group. However, as the Applicant knew about the group=s reputation of violence, he decided not to join. He later began to receive phone calls that threatened his life and that of his family. He contacted the police in vain.

[3]                In September 2003, he had a face-to-face meeting with two Shining Path members. In October and November 2003, he was threatened to stop sending his children to school. He later learned through his friends that refugee protection was available in Canada and so he took a job on a ship that was destined for Canada. The Applicant arrived in Canada on February 01, 2004 and made a claim for refugee protection on February 13, 2004.


[4]                The Refugee Protection Division of the Immigration and Refugee Board (the Aboard") refused his refugee application after finding:

              a)        the Applicant was not credible; and

              b)        there was adequate state protection available in Peru.

[5]                It is not disputed between the parties that the applicable standard of review for findings of credibility is patent unreasonableness. (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315)

[6]                In its decision, the Board made two patently unreasonable errors. It found on page 7 of its decision:

When asked if he considering reporting the alleged incidents to the police would create additional problems for him with the Shining Path. The claimant first responded that he saw no problems with this and then, later in his testimony changed that response to "of course, yes it would" since they were attempting to recruit him. Court in Dan-Ash which stated:

                   ... An important indicator of credibility is the consistency with which

                   a witness has told a particular story.

The Board discounts the credibility of the second answer because, in view of the fact that he claims to have gone to the police and makes no mention of any specific threats made based on his police report, the second answer appears to be an embellishment for the purpose of exaggerating the situation with this group.

[7]                Yet an examination of the transcript shows that the applicant testified as follows:

                        PRESIDING MEMBER: Sure, repeat the question that counsel is asking.

                        CLAIMANT:    Yes, there would still be interest.

                        COUNSEL:      Now, in his testimony he also indicated that he reported the matter                                                         to the police.

                        CLAIMANT:    Yes.

                        COUNSEL:      Would that create any additional problem for him?

                        CLAIMANT:    No.

                        COUNSEL:      (Inaudible) with the police or with the SL people?

                        CLAIMANT:    I do not understand the question.

                        COUNSEL:      What I mean is, if you report to the police that the SL people came                                                        to ask any questions, harassing me. So, is there any risk in making                                                        that kind of reports to the police?

                        CLAIMANT:    Of course, yes.

                        COUNSEL:      What kind of risk?

                        CLAIMANT:    Risk against my life, because they threatened me with death if I was                                                       not going to be a member of their group.


[8]                Thus, the Applicant was not inconsistent. Instead, he did not fully understand the import of the initial question. When the question was phrased more specifically, the Applicant answered it in a way consistent with his claim.

[9]                Secondly, the Board stated:

Although the claimant alleges that he went to the police, he offered no corroborating evidence of making such a report. The claimant expressed no fear of the police and it is thus reasonable to expect that documentary proof of the alleged police report could have been supported with a copy of that report. The claimant is expected to provide clear and convincing evidence that there is a serious possibility that state protection would not be reasonably forthcoming. Moreover, he failed to show that he had made reasonable efforts to seek protection, which was not forthcoming or adequate.

[footnotes removed]

[10]            This finding is contrary to the evidence. At the hearing, the applicant requested that he be allowed to introduce, albeit late, a police document evidencing that he had reported the threats from the SL to the police. The Board allowed him to introduce the document ruling it was relevant, and made it exhibit C-4. (see Tribunal Record, page 206). The Board even summarized the applicant=s position specifically referring to the police report:

You tell the Board that you reported this incident to the police, and Exhibit C-3 is intended to support that allegation. You state that on your way home one night in September, two people accosted you and threatened to kill you and your children. You state that throughout October and November of 2003 you received more threats, you physically removed your children from their school, and went into hiding yourself. (Page 208 of the Tribunal Record)

[11]            In addition, the Applicant was questioned extensively about the police report during the hearing. (See Tribunal Record pages 235 to 238) This flies in the face of the assertion that there is no corroborating evidence of the making of such a report.

[12]            Thus the Board came to a patently unreasonable decision by a) finding the applicant=s testimony inconsistent when it clearly was not and b) holding the absence of documentary evidence against him when he had actually produced such evidence and the Board admitted as being relevant.

[13]            This should be the end of the matter. However, the Respondent argues that the finding of the availability of state protection was sound, and accordingly, the decision should still be upheld notwithstanding the errors of the Board (which the Respondent does not dispute). In support, the respondent relies on Sarfraz v. Canada (Minister of Citizenship and Immigration), [2003] F.C. J. No. 1974 and Yassine v. Canada(Minister of Employment and Immigration) (1994), 172 N.R. 308.

[14]            In Sarfraz, supra, Snider J. stated the following proposition at paras 11 and 12 on which the respondent relies:

In its reasons, the Board clearly acknowledged the problems related to sectarian violence that still occur in Pakistan. Although the Board did not refer to every single piece of documentary evidence before it, this is not a reviewable error (Hassan v. Canada (Minister of Employment and Immigration), (1992) 147 N.R. 317; Stelco Inc. v. British Steel Canada Inc. [2000] 3 F.C. 282 (C.A.)). The Board's analysis of state protection was comprehensive and detailed, and was supported by the documentary evidence before it. As a result, there is no basis for this Court to intervene in that finding.

This conclusion alone is sufficient to dispose of this application for judicial review. As a result of the Boards finding of adequate state protection, the Applicant cannot satisfy the definition of a Convention refugee or a person in need of protection. As a result, any other errors made by the Board would be of no consequence, because the Board's ultimate conclusion would not change if those errors had not been made.

[15]            In Yassine, supra, Justice Stone J.A. made the following statement at paras 9 and 10 which the Respondent cites in support:

Even if the new information was improperly received and this impropriety was not waived, there would still appear to be no purpose for remitting the matter to the Refugee Division provided, as I have concluded, the adverse finding of credibility was properly made. I do not suggest that a breach of natural justice does not normally require a new hearing. The right to a fair hearing is an independent right. Ordinarily the denial of that right will void the hearing and the resulting decision. [See Note 6 below] An exception to this strict rule was recognized in Mobile Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 where, at page 228, the Supreme Court of Canada quoted the following views of Professor Wade:

A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.

While recognizing that natural justice or procedural fairness had been denied, the Supreme Court gave effect to Professor Wade's distinction by withholding a remedy because the outcome was "inevitable", in that the decision-maker "would be bound in law to reject the application" of the appellant therein.

The limits within which Professor Wade's distinction should operate are yet to be established. Iacobucci J., writing for the Court at page 228, regarded the circumstances in Mobile Oil as "exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition", citing Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. It should be noted that Cardinal involved a complete denial of a hearing. Here it is not necessary to speculate as to the outcome, assuming of course that natural justice was denied and that there has been no waiver. [See Note 7 below] The adverse finding of credibility having been properly made, the claim could only be rejected. It would be pointless to return the case to the Refugee Division in these circumstances.     

[Note 6 and 7 removed and underlining added]

[16]            Yassine, supra involved a question of information regarding country conditions improperly received after the closing of the hearing. As far as credibility was concerned, Stone J.A. specifically noted in paragraphs 9 and 10 that "adverse finding of credibility was properly made". This case is thus distinguishable and is of no help to the Respondent.

[17]            As far as the seemingly categorical statement in Sarfraz, supra, is concerned, I cannot place it in context, as it is not clear from the judgment if the other deficiencies of the Board=s decision which were attacked by the applicant were linked to state protection or not. However, it is clear from the jurisprudence that state protection is not a concept to be applied in the abstract. The applicant must first establish the threat he faces which would make him a convention refugee or a person in need of protection. The Board must then determine whether state protection is available against the identified threat.

[18]            In this case, the Applicant=s credibility with respect to both the threat that he faces as well as the availability of state protection was put in doubt on the basis of an egregious error. The Board held the alleged failure to produce the police report against the Applicant. Not only had he produced the police report, but the Board had admitted it as being relevant and had subsequently posed several questions to the Applicant based on the report. Thus, there is a substantial nexus between the Board's finding of state protection and the patently unreasonable error of the Board (which led to the finding that no credible threat existed). Given this close nexus, the entire decision is tainted by the error and needs to be redone.

[19]            At the end of the hearing, when I indicated to counsel how I would rule in writing, counsel for the respondent suggested that I certify the following question:

AIf there is a valid state protection finding, is it immaterial that other mistakes have been made by the Board?"

[20]            I see no reason to pose that question as it does not arise in the instant case. A finding regarding the availability of state protection can hardly be considered a valid finding where it is closely connected to a defective finding of lack of credibility.

[21]            Accordingly, this application will be allowed.


            THIS COURT ORDERS that the decision of the Board dated December 1, 2004 be set aside and the matter referred back to a differently constituted Board for reconsideration.

                                                                        " Konrad W. von Finckenstein "




DOCKET:                                           IMM-73-05




THE MINISTER OF CITIZENSHIP AND                                                                                         IMMIGRATION



DATES OF HEARING:                     DECEMBER 6, 2005


AND ORDER BY:                             VON FINCKENSTEIN J.

DATED:                                              December 9, 2005


Boniface Ahunwan


Ladan Shahrooz



Boniface Ahunwan

Barrister & Solicitor

Toronto, Ontario


John H. Sims, Q.C.

Deputy Attorney General of Canada


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