Date: 20050824
Docket: IMM-8205-04
Citation: 2005 FC 1160
BETWEEN:
GABERT ALEJANDR ACOSTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) denied the Applicant's claim for refugee status or protection on the basis of credibility findings. These specific findings were contrary to all of the documentary evidence. The RPD gave no reasons for the rejection of this documentary evidence.
BACKGROUND
[2] The Applicant is a 32 year old male citizen of Venezuela. He alleged that people whom he believes to be supporters of Hugo Chavez would harm or kill him.
[3] His specific allegation was that he was a supporter of the Accion Democratica party (AD), although not a card carrying member. In 2000 he began participating in political opposition activities in Venezuela.
[4] His evidence was that after the failed coup of April, 2002, followers of Hugo Chavez, including members of the "Bolivarian Circles", began to intimidate him. Most particularly he was threatened through telephone calls prior to a large opposition event. At the event Chavists attacked his group; he was shot at although he escaped in his car. This particular political event had high profile and was covered by the press.
[5] He reported the incident to his insurer including supplying it with pictures of bullet holes in his car. He had his lawyer determine if he could secure protection for him but the lawyer reported that the police were, at best, disinterested and the lawyer advised him to leave the country because of the danger.
[6] He also reported that while he was in hiding at a friend's home, he was shot at again. As a consequence he fled Venezuela for Canada.
[7] In a brief decision the RPD dismissed his application. The critical passage of the reasons, to which the Applicant objects, found the events related not to be credible. That passage reads:
. . . I find that the claimant's statement that he did not join the AD because he did not want to give up his time to earn a living was without merit. I find his allegation that his lawyer advised him to leave the country, his statement that he was hiding before leaving and that he was threatened not to be credible. He fabricated the allegations of his association with the AD, the telephone threats and hiding to mislead the Refugee Protection Division into finding that his life was at risk in Venezuela. I find that the claimant was not involved with the AD or anti-Chavez activities and that the Chavez regime or the Bolivarian circles do not have any interest in the claimant. I find the claimant not to be credible on all matters central to his claim.
DETERMINATION
[8] The RPD is normally entitled to a high degree of deference in its credibility and plausibility findings. However, the Court must be able to see how the RPD reached these conclusions, particularly on key findings. This burden of explanation increases in proportion to the relevance of the evidence in question. (See Cepeda-Gutierrez et al v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425).
[9] The issue in this case is not whether the RPD gave adequate reasons but whether the RPD based its decision on "an erroneous finding of fact . . . without regard for the material before it". (Federal Court Act section 18.1(4)). There is no explanation for, or analysis of, the rejection of the Applicant's evidence other than that the RPD did not find it credible.
[10] On each of the key factual findings that certain events did not happen, there is specific evidence to support the fact that these events did happen, and no evidence to the contrary:
- re: lawyer's advice: a copy of the lawyer's letter was filed. It outlined efforts to secure state protection and concluded with the advice that the Applicant should leave the country. The Applicant offered to have the latter authenticated (as the RPD Rules permit the RPD to do). The RPD refused to do so. The finding is plainly wrong.
- re: life at risk: the Applicant produced copies of the insurance report that he filed after the incident along with photographs of the bullet holes in his car. In addition there was evidence from public sources of the violence at the political event and other corroborating documents. The conclusions drawn by the RPD are unsupported.
- re: association with the AD: a letter from the AD confirming his involvement was filed. The factual finding by the RPD is again unsupported.
[11] The RPD had a duty either to explain why it did not accept critical evidence or to show that its rejection is so plainly supported by the record that no explanation should be necessary. In this instance, there is no explanation of why the documentary evidence was rejected, no explanation of why the Applicant's testimony was discounted, and no evidence in the record upon which this Court could find any basis for the RPD's factual findings.
[12] The RPD's findings fly in the face of the evidence and therefore the decision was made without regard for the material before it.
[13] For these reasons this judicial review will be granted, the RPD's decision quashed and the matter remitted for determination by a differently constituted panel.
[14] There is no question for certification.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8205-04
STYLE OF CAUSE: GABERT ALEJANDR ACOSTA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 26, 2005
REASONS FOR ORDER: Phelan J.
DATED: August 24, 2005
APPEARANCES:
Mr. D. Clifford Luyt FOR THE APPLICANT
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Czuma, Ritter
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT