Date: 20050916
Docket: IMM-26-05
Citation: 2005 FC 1136
BETWEEN:
Jorge Samuel AYLLON VALENCIA
Teresa Lupe MORENO MENDIETA
Sofia Manuela AYLLON MORENO
Rosa Alejandra AYLLON MORE
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 of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 18, 2004, wherein the Board found the applicants not to be "Convention refugees" or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Jorge Samuel Ayllon Valencia (the applicant) is a 43 year old citizen of Peru. He is joined in his claim by his spouse, Teresa Lupe Moreno Mendieta and their two minor children, Sofia Manuela and Rosa Alejandra. All co-claimants claim on the same basis as the applicant, who fears a risk to life and a risk of cruel and unusual treatment or punishment or danger of torture.
[3] The Board found that the applicant's fear from the Shining Path was not objectively well founded and that the applicant was not credible.
[4] It is clear in the available documentary evidence that although there are minor incidents involving the Shining Path, it in no way appears to be a threat to the citizens of Peru as in the past. Based on the objective evidence the Board did not believe the claimant has a credible claim of future fear at the hands of these individuals. I find that this finding is not unreasonable.
[5] The Board concluded that the applicants failed to rebut the presumption that their State was able to protect them, which is an essential element in order for their claim to be accepted. It falls upon the applicant to provide clear and convincing evidence demonstrating the inability of the State to grant protection to its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). The applicant must also show that he has exhausted all courses of action available in his State prior to seeking refugee status elsewhere and it is insufficient for a claimant to simply show that he went to see members of the police and that his efforts were unsuccessful (Minister of Citizenship and Immigration v. Kadenko et al. (1996), 143 D.L.R. (4th) 532 (F.C.A.), leave to appeal to the Supreme Court of Canada denied on May 8, 1997). There is nothing to suggest that the Board erred in concluding that the applicants did not rebut this presumption. In that regard, the assessment of the facts by the Board, a specialized tribunal, is supported by the evidence, which leads me to essentially the same finding as that of my colleague Martineau J. in Bustamante v. Canada (M.C.I.), 2002 FCT 499, [2002] F.C.J. No. 643 (QL), at paragraph 12:
I find that the applicant has failed to show that the Board has made any error in preferring the more contemporary documented evidence about the current situation in Peru at the time of the claim which made no mention of Shining Path activity in Lima and which specifically stated that such activity is limited to remote jungle areas. The documentary evidence on file clearly shows that the Shining Path organization has been all but decimated by the Peruvian authorities. Furthermore, the Board found that the applicant did not present clear and convincing evidence that the State cannot protect him, even if the Shining Path were indeed making threatening phone calls. Based on the evidence on record, these findings were reasonably open to the Board.
(See also Mejia v. Minister of Citizenship and Immigration (June 30, 2004), IMM-2757-03, 2004 FC 925.)
[6] The Board also based its decision on a negative credibility finding. In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). Furthermore, the Board's decision will only be disturbed if it is sufficiently unreasonable to attract this Court's intervention. It has been established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[7] The Board's decision is founded on the evidence and it clearly pointed out all inconsistencies and contradictions therein. I see no reason to interfere with the Board's conclusion on credibility.
[8] It is for the above reasons that the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 16, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-26-05
STYLE OF CAUSE: Jorge Samuel AYLLON VALENCIA, Teresa Lupe MORENO MENDIETA, Sofia Manuela AYLLON MORENO, Rosa Alejandra AYLLON MORE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 16, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: September 16, 2005
APPEARANCES:
Me Juliana Rodriguez FOR THE APPLICANTS
Me Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Juliana Rodriguez FOR THE APPLICANTS
Sherbrooke, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada