Date: 20021206
Docket: IMM-4793-01
Ottawa, Ontario, the 6th day of December 2002
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
Cecilia BARRANTES GOMEZ
Bryan SEGURA BARRANTES
Applicants
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For the reasons stated, the application for judicial review is dismissed. No question has been proposed for certification.
"François Lemieux"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
Date: 20021206
Docket: IMM-4793-01
Neutral Citation: 2002 FCT 1264
BETWEEN:
Cecilia BARRANTES GOMEZ
Bryan SEGURA BARRANTES
Applicants
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] Cecilia Barrantes Gomez (the female applicant) is the mother of Bryan Segura Barrantes, her son of minor age. They are citizens of Costa Rica. Her son, born in 1988, is the offspring of a marriage that was dissolved in 1993, and his claim is based on the same facts alleged by his mother. Their claims as refugees were denied by the Refugee Division of the Immigration and Refugee Board (the panel) on September 27, 2001, on two grounds: (1) the lack of credibility of the testimony of the female applicant, the only one to testify, and (2) the lack of a subjective fear of persecution on the part of the female applicant.
[2] The female applicant alleges a well-founded fear of persecution because of her membership in a particular social group, namely, women victims of domestic violence in Costa Rica who are not given any protection by the state.
[3] In her Personal Information Form (PIF), the applicant writes that in February 1998 she met an individual who became her common-law spouse; they began living together in March 1998.
[4] Two months later, the behaviour toward her of this man, an alcoholic, changed and gradually deteriorated, from bad manners to minor physical assaults and, commencing in July 1998, a number of major physical, sexual and psychological assaults including at some point death threats.
[5] According to her PIF, she laid a complaint in December 1999 with the women's delegation of the National Women's Institute, and in March 2000 she asked the police for assistance. During that month she left her common-law husband but he managed to track her down and to threaten her again in three different places, the last one at her mother's where she had gone to live.
[6] From May 2000 to November 2000, she visited Canada without her son. She hoped that her former spouse would forget her. At the end of November 2000, she returned voluntarily to Costa Rica to live with her aunt and rejoin her son. On December 1, 2000, she says, she barely averted an attempted abduction by her former common-law spouse as she was leaving a school event in which her son was involved. She complained again to the women's delegation and filed an information against her former spouse with the office of the state prosecutor.
[7] On December 24, 2000, her ex-husband showed up again at her mother's home and new threats were made. Having obtained authorization from the father of her son, on January 11, 2001, she and her son fled Costa Rica and landed that day in Canada where they claimed refugee status 11 days later.
[8] The panel did not believe the applicant was a victim of spousal violence, and in support of this conclusion cited a number of contradictions in the evidence in regard to the dates of certain events:
(1) Conflict between her PIF and her testimony with two exhibits filed by her: her second complaint to the women's delegation (P-11) and the medical report (P-14) on the failed abduction in early December 2000. Confronted by the panel as to the different dates, the applicant testified that the difference in dates was an error by the person who took the particulars for her statement in support of her complaint and that the date in the medical report originated from the same source because the women's delegation had filed a request on her behalf for a medical assessment. The panel held:
In our view, these explanations do not satisfactorily clarify the fact that we find ourselves with two different dates for an event that is central to this claim, since barely five weeks later the claimant again left her country to come back to Canada. This unexplained contradiction seriously undermines her credibility.
(2) Confusion in the applicant's testimony concerning the commencement, duration and end of her live-in relationship with her persecutor. The panel analyzed her testimony and compared it with the dates indicated in her PIF, in her first denunciation of December 1999, or in the complaint of March 16, 2000, filed as exhibit P-9. For example, in exhibit P-9, she states that she had been living "separated from that man since February 2000", having previously stated in her PIF that she had stopped living with him in March 2000. Confronted with this contradiction, the panel writes: "She explained that she left the house on March 10, 2000 but that from February on, they had lived as brother and sister in separate rooms, and there had been nothing between them." The panel does not accept her explanations and concludes that "These accumulated shortcomings, added to the unexplained contradiction regarding the date of the incident in early December 2000, bear on important points in this claim and thus undermine the claimant's overall testimony concerning the domestic violence she claims to have suffered at the hands of her ex-husband."
[9] The applicant's voluntary return to Costa Rica in November 2000 is the basis for the panel's conclusion that she lacked a subjective fear of being persecuted if she had to return there. The panel did not accept the explanations provided by the applicant: (1) that before returning to Costa Rica she had spoken with her niece and her son and been told that no one had seen her former spouse, and (2) her desire to be with her son. The panel did not understand why, faced with the violence she had experienced in Costa Rica, she had not brought her son to Canada and did not accept the explanation that she was unable to contact the father, who was often away on business trips, in order to obtain his consent. The panel concludes:
These explanations of the claimant are, in our opinion, insufficient to justify the fact that the claimant failed to apply for Canada's protection at the time of her first stay from May to November 2000, and especially the fact that she returned voluntarily to her country of persecution without seriously inquiring into the possibility that her ex-husband would carry out the many death threats he had made to her prior to May 2000, after he had attacked her more than twenty times between July 1998 and March 2000, even in the hiding places where she took refuge in April/May 2000. It seems implausible to us that before leaving Canada in November 2000, the claimant did not contact her parents, who had themselves been threatened by her ex-husband in May 2000, and again went to live in the same environment where she had had her problems, including her mother's home in December 2000.
[10] The Supreme Court of Canada, the Federal Court of Appeal and this Court have consistently held that the credibility of testimony is a question of fact that pertains to the exclusive jurisdiction of a tribunal such as the Refugee Division. This Court should not reconsider the facts and cannot substitute its view of things for that of the tribunal, provided that the tribunal has based its conclusions on the evidence and its inferences are not unreasonable.
[11] Where there are contradictions, the panel should confront the witness and request explanations, but it is up to it whether or not to accept those explanations, so long as it does not act unreasonably.
[12] Having examined the transcript in the certified record, I find that the contradictions listed by the panel are supported by the evidence and that the panel could reasonably dismiss the explanations that were advanced.
[13] The existence of a subjective fear is an essential ingredient in the analysis of the fear of persecution and its presence or absence is fundamentally a finding of fact (see Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695, and Gamassi v. Canada (Minister of Citizenship and Immigration), 194 F.T.R. 178, two decisions of this Court relying on two decisions of the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593.
[14] The panel found that there was a lack of subjective fear on the part of the female applicant. This conclusion is based on the evidence and is not unreasonable.
[15] For these reasons, this application for judicial review shall be dismissed. No question has been proposed for certification.
"François Lemieux"
Judge
Ottawa, Ontario
December 6, 2002
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4793-01
STYLE: Cecilia Barrantes Gomez and Bryan Segura Barrantes
and
Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 31, 2002
REASONS FOR ORDER OF MR. JUSTICE LEMIEUX
DATED: December 6, 2002
APPEARANCES:
Jorge Colasurdo FOR THE APPLICANTS
Caroline Cloutierg FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jorge Colasurdo FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada