Date: 20010911
Docket: IMM-6517-00
Neutral Citation: 2001 FCT 1009
BETWEEN:
MAXIMO ANDRES FEBRES RIVEROS
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This is an application for judicial review from the decision by the Refugee Division (hereinafter "the tribunal") on November 28, 2000 that the plaintiff is not a Convention refugee.
FACTS
[2] The plaintiff was born on April 15, 1951 and is a Peruvian citizen. The plaintiff alleged that he feared being persecuted by the Peruvian police and by the Shining Path terrorists for alleged political opinions and his membership in the particular social group of union members.
[3] In his personal information form ("PIF"), the plaintiff indicated that he worked for the Frio Lux companies from February 1985 onwards as a refrigeration technician.
[4] In early February 1998, and for the period 1998-1999, the plaintiff said he was elected to the management of the only union in the business as defence secretary.
[5] The plaintiff further maintained that the union appointed him as delegate to represent the workers on the co-ordinating committee of the workers' central - general confederation of workers of Peru.
[6] On July 16, 1998 there was widespread civic mobilization throughout the nation in Peru to react to the socio-economic program introduced by the Fujimori government.
[7] At about 6:00 p.m. the plaintiff said he was arrested by the Lima anti-riot police and taken together with ten other union members to the Lima prefecture.
[8] During his stay at the police station the plaintiff said he was described as a political agitator, a rebel and a terrorist sympathizer. The plaintiff alleged that he was released by the police at around midnight.
[9] On April 8, 1999 the plaintiff and Harold Ovalle, also a delegate to the workers' central, were in the premises of the Coldex company, which had 400 technical workers and employees.
[10] The purpose of the plaintiff's presence was to support Mr. Ovalle in their appeal to the workers to join in a national strike to protest government abuses.
[11] When they came out at around 8:00 p.m. the plaintiff and Mr. Ovalle were intercepted by four men who grabbed the plaintiff and his colleague and forced them to get into their pickup.
[12] The plaintiff and his colleague were taken to a house in a slum in the Pampilla area. One of the men identified himself as the new fighters for the Communist Party, Shining Path. He explained that he wanted the plaintiff and Mr. Ovalle to present their party's ideology to the working class.
[13] The man took out a document and ordered Mr. Ovalle to take it. The document then dropped from Mr. Ovalle's hands. At that point, the man talking to them took out a firearm and dealt a terrible blow to Mr. Ovalle's head. The injury began to bleed freely and Mr. Ovalle lost consciousness and collapsed to the ground. The man then told the plaintiff that this was only a warning.
[14] The man also explained to the plaintiff that his organization was aware of all their movements and their information circuit throughout the factories in the capital. He also indicated that the plaintiff and Mr. Ovalle were going to be watched by spies for the organization to ensure that they carried out the orders. He went on to threaten the plaintiff with reprisals if he failed to do so.
[15] At around 10:30 p.m. the plaintiff and Mr. Ovalle were left near the highway leading to Pampilla. The plaintiff and Mr. Ovalle took a taxi and went to the polyclinic social security hospital in Callao.
[16] The plaintiff telephoned the office of the general confederation of workers of Peru to tell them about the situation. The head of the confederation united front advised the plaintiff to go to the national anti-terrorism bureau to file a complaint and report the facts.
[17] Later, the plaintiff and Mr. Ovalle went to the national anti-terrorism bureau with the document given them by the Shining Path representative. In this handwritten document it spoke of seeking the support of the working class to reorganize and restructure the Peruvian Communist Party and recruiting new supporters for the revolutionary struggle against the Fujimori government.
[18] At the national anti-terrorism bureau, where the plaintiff and his colleague remained for four hours, police officers took notes and wrote up their statements. The plaintiff and Mr. Ovalle also looked through photos of terrorists so as to identify those who had kidnapped and attacked them. They also asked for police protection.
[19] For the next three weeks, on information tours to unionized factories in the confederation, they were given a police escort for their movements. No incidents occurred in these 21 days and then the police protection was withdrawn. The National Police of Peru explained that it lacked the staff to continue providing an escort.
[20] At about 8:00 p.m. on May 6, 1999 a group of seven persons burst violently into the union premises at the record factory where the plaintiff was together with Mr. Ovalle.
[21] The group was armed and five men pointed their weapons at the persons attending the meeting. The two women in the group went around the benches distributing pamphlets.
[22] Once the pamphlets were distributed, the men ordered the plaintiff and Mr. Ovalle to follow them and not to resist. Mr. Ovalle refused to obey and one of the members pushed him to the ground and fired a shot into his left leg.
[23] The shot alerted the watchman, who set off the alarm siren, and this caused the terrorists to flee.
[24] Officers of the national anti-terrorism bureau arrived shortly afterwards. They questioned them and examined the pamphlets distributed by the terrorists.
[25] On May 7, 1999 the national anti-terrorism bureau informed the plaintiff that three men and one woman had been arrested using roadblocks. The plaintiff was asked to attend a lineup of suspects. During this procedure the plaintiff had doubts and passed them on to the national anti-terrorism bureau officers. The plaintiff did not want innocent people to be unfairly punished.
[26] On May 11, 1999 Mr. Ovalle formally recognized one of the men and the woman as perpetrators of the attack.
[27] The national anti-terrorism bureau officers told the plaintiff and Mr. Ovalle that they would be called as witnesses at the terrorists' trial.
[28] On May 25, 1999, at about 12:30 a.m., the plaintiff heard the noise of an engine under his windows. When he looked out he saw a dark car parked with all its lights off. The plaintiff found this suspicious and was very frightened.
[29] The plaintiff went immediately to the back of the house and climbed the wall of the small adjoining park. When he got some distance away the plaintiff glimpsed a silhouette on the roof and a shot was fired. The plaintiff ran past some three houses along the park. The plaintiff managed to get to a neighbour's house and call the police.
[30] The plaintiff was taken to the Condevilla police station and was then transferred to the national anti-terrorism bureau, where he asked for personal guarantees from fear of an attempt on his life. His request was immediately denied without explanation.
[31] At 6:00 a.m. on May 25, 1999 the plaintiff telephoned Mr. Ovalle at his residence. One of Mr. Ovalle's family members explained to the plaintiff that Mr. Ovalle had been killed the night before by Shining Path terrorists. The plaintiff left his residence and went to the national anti-terrorism bureau, where he saw an officer.
[32] The plaintiff explained to the officer that he wanted to go into hiding for a time. However, the officer insisted that the plaintiff give him an exact and complete address so he could send the plaintiff his summonses as a witness at the trial.
[33] The plaintiff explained that he did not know where he would be hiding. The officer then became angry and his tone became threatening. The officer then left and when he came back placed the plaintiff's file in front of him. The officer explained to the plaintiff that the file indicated the plaintiff had been noted on July 16, 1998 as a political agitator and a person suspected of having ties to subversives. The plaintiff felt cornered and gave an exact address, that of a neighbour, as in the event of refusal the officer threatened that he would keep the plaintiff in detention until the trial was held.
[34] When he left the national anti-terrorism bureau the plaintiff decided to hide until he could leave the country so as to finally elude the Shining Path murderers and the problems with the national anti-terrorism bureau.
POINT AT ISSUE
[35] Did the tribunal err in assessing the plaintiff's credibility and make a decision that did not take the evidence into account?
ANALYSIS
[36] Did the tribunal err in assessing the plaintiff's credibility and make a decision that did not take the evidence into account?
[37] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated, regarding the standard of review applicable to a tribunal's findings of credibility and plausibility:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[38] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), Lutfy J. indicated the standard of review for a finding by a tribunal on the credibility of testimony:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[footnotes omitted.]
[39] The plaintiff in the case at bar alleged that the tribunal unreasonably concluded that he had provided no explanation about his failure to make a claim in the countries he passed through before arriving in Canada. The plaintiff indicated that at the hearing he stated that the departure arrangements were made by an alien smuggler with a final destination, namely Canada.
[40] In this connection, the tribunal concluded as follows as p. 1 of its decision:
[TRANSLATION]
He said he left his country on June 1, 1999, travelled through nine countries and finally came to the Canada-U.S. border on July 14, 1999. Seven of the countries where he stayed are signatories to the Convention or the Protocol. He never asked for refugee status in any of them and did not explain his omission at the hearing. Such an omission is not consistent with the conduct of a real refugee.
[41] At p. 68 of the hearing transcript the plaintiff testified as follows, regarding the question of his route from Peru to Canada:
[TRANSLATION]
Q. You left your country in what way?
A. By land and with no documents.
- You said you had the help of a facilitator.
Q. What did he do for you, or what did she do for you?
A. A facilitator who looked for an alien smuggler.
. . . . .
A. And we beg . . . began our long journey till we arrived with false documents. So, they took photos and they . . . they gave documents, passports, and then we began.
[42] Then, at p. 81:
[TRANSLATION]
Q. How much did that cost you, this . . . journey and the alien smuggler and everything?
A. First, being here in Canada, I knew the following. They made an agreement that the time would be 15 days. From my country to Canada, 15 days. They agreed on a price. However, because of serious problems that exist in Central America, we had to stay two or three days in some countries. This caused the coyote additional expense, because we were delayed 44 days. He charged this to my brother.
My brother . . . Of course my brother did not object to paying it, because I arrived with . . . alive.
[43] The plaintiff's testimony at the hearing does not explain why he did not claim refugee status in the other countries through which he passed. He only explained that his brother had made an agreement for the plaintiff to be brought to Canada. The agreement concluded did not prevent the plaintiff from claiming refugee status in the other countries. In my view, the tribunal did not err in concluded that the plaintiff had not explained his failure to claim refugee status in the other countries through which he passed. In any event, this conclusion was not decisive for the tribunal. Accordingly, I will only intervene if the tribunal's other conclusions are not reasonable.
[44] On the validity of the service record and the tribunal's conclusion that the photo of the plaintiff could not date back 28 years, and that the plaintiff's explanations were not acceptable, the plaintiff maintained that the tribunal was not an expert on the age of an individual in a photograph.
[45] The plaintiff also explained that he had never said the service record was recently updated. Moreover, the decrepit condition of the record clearly contradicted any suggestion that a recent update had been made. The plaintiff maintained that the tribunal's conclusion was unreasonable.
[46] At the hearing, and as appears from the transcript at p. 72, there was the following exchange about the service record:
[TRANSLATION]
BY THE PRESIDING MEMBER (to the person concerned)
Q. Your service record was made . . . was issued when? Do you know?
A. No, because this . . . it's not the original, it's a duplicate, because I had to get it out, because even the photo goes back many, many years.
- I was going to ask you that.
Q. When was the duplicate made?
A. I . . . I could not say.
- Because the photo is there, you would say it was taken last week, because it looks so much like you.
And yet, it says here that . . .
BY PRESIDING MEMBER (to interpreter)
Q. What does fecha de expedition mean?
A. It means date . . .
BY REFUGEE CLAIMS OFFICER (to presiding member)
- Of issue.
. . . . .
BY PRESIDING MEMBER (to person concerned)
- It is marked June 16, 72. You have not got any older in 28 years.
A. 72 or 92?
- 72. You are giving me a document which on its face states that it was issued in 72, with a photo which appears to be a very recent one of you. Clearly there is a problem with this document, right?
[47] The plaintiff testified that the record was a duplicate. However, he did not testify that the record was recently updated. I do not believe the tribunal could conclude that the record was recently updated in view of the plaintiff's testimony, since the latter even testified that the photograph [TRANSLATION] "goes back many, many years".
[48] The fact remains, however, that the issue date of the record was 1972 and the tribunal considered that the photograph of the plaintiff contained in it looked like a recent photograph of the plaintiff, since it showed the plaintiff as he was at the hearing. The tribunal did not accept that the photograph was taken 28 years before, when the plaintiff was 21 years old.
[49] Section 68(3) of the Immigration Act indicates:
| 68 (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
68 (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
|
[50] Counsel for the plaintiff admitted to the tribunal that the photograph on the record dated 1972 was a recent one, which was clearly apparent.
[51] The tribunal did not need to refer to an expert to determine the plaintiff's age; moreover that was not the question.
[52] The question raised by the tribunal was primarily about the fact that the plaintiff appeared unable to provide adequate explanations regarding these documents, namely Exhibits P-10, P-12 and P-13.
[53] In Ghazvini v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1550 (F.C.T.D.), Richard J. (as he then was) indicated:
Counsel for the applicant vigorously challenged the tribunal's failure to give any weight to the arrest warrant submitted by the applicant. The Board had this to say in its reasons:
In regard to the copy of the arrest warrant the panel does not give it any weight. We see it as self-serving. Evidence such as this is easily concocted. Furthermore, the original was not made available to the panel.
The tribunal made a correct finding that the original was not made available to the panel. The applicant claims that he was provided with a copy of the warrant after he escaped and that it was given to his father-in-law by a Kurdish worker. Counsel for the applicant submits that it is patently unreasonable for the tribunal to see this document as self-serving and further submits that the tribunal did not make a clear finding as to the authenticity of this document. In my opinion, in the context of the tribunal's decision, it is clear that when the tribunal says that it gives the document no weight it is because it considers it to be false. Both the statement that the document was to be given no weight and that it was self-serving followed the tribunal's statement that it found the applicant not to be credible or trustworthy. The Board in its decision identified a number of inconsistencies and implausibilities in the evidence of the applicant as well as finding that the applicant had great difficulty in clarifying his answers to the most basic questions.
[54] It appears from this passage that Richard J. considered that the tribunal could conclude that a document was a forgery without having to seek expertise because of the tribunal's conclusion that the plaintiff in that case was not credible.
[55] In my opinion, the tribunal's reasons in support of its conclusion that the documents were fraudulent is reasonable and I do not think it was necessary to seek an analysis by an expert, since the problems with the documents were apparent on their face and were obvious.
[56] As to the tribunal's conclusion regarding the time of Mr. Ovalle's death, the plaintiff explained that he made statements about Mr. Ovalle's death based on the information he had received. Further, he filed the death certificate as Exhibit P-6. Also, Exhibit P-12 is the police report prepared by a police officer. The plaintiff had no involvement in the preparation of the document.
[57] The tribunal properly noted that the documents contradicted each other and that they contradicted the testimony of the plaintiff, who maintained that Mr. Ovalle died during the night. The tribunal had already concluded that document P-12 was not credible and was justified in concluding that the doubtful documents introduced contradictions into the plaintiff's evidence. I cannot conclude that the tribunal erred in making this finding.
[58] The plaintiff contended, with regard to the end of his refrigeration studies, that the tribunal erred when it said that the plaintiff had provided no explanations, since the plaintiff explained that these were courses for several weeks and that diplomas were received after each course.
[59] I have carefully reviewed the hearing transcript and did not find the passage in which the plaintiff said he explained the nature of the courses he took. In any case, the fact remains that the plaintiff's diplomas indicated that he finished his courses on April 2, 1976 and October 2, 1976, whereas he said in his PIF that he concluded his studies in November 1976. The tribunal's finding that the plaintiff had not explained this difference therefore reflects the evidence.
[60] The plaintiff also alleged that the tribunal erred in concluding that there was a contradiction between the fact of being an employee for Frio Lux and a member of the Frio Lux employees' union.
[61] It should be noted that the tribunal found no contradiction between being an employee for Frio Lux and being a member of the Frio Lux employees' union, but the tribunal did find, and quite properly, that there was a contradiction between working as a refrigeration technician for the Frio Lux company when Exhibit P-11 indicated that the plaintiff had been elected a member of the Frio Lux's illuminated signs union. Based on the evidence presented, the tribunal's conclusion was justified.
[62] The plaintiff further maintained that the tribunal erred in assessing the facts entered in evidence and did not pay attention to the chronology of events when it concluded that the plaintiff was not credible, because the police provided protection at one point and later allegedly refused it. The plaintiff indicated that the hardening of the police attitude was due to the fact that he refused to sign false testimony.
[63] In my opinion, the tribunal's conclusion was not justified in view of the plaintiff's testimony. The tribunal indicated that the plaintiff testified that after Ovalle's death in May 1999 he was refused protection because the police felt he was a political agitator, since he had been arrested at a union demonstration in July 1998.
[64] In fact the plaintiff did not testify that he was denied protection because he was a political agitator. At p. 62, he testified that on the night Mr. Ovalle died he went to the national anti-terrorism bureau to claim personal protection. He also testified that this was denied and that no explanation was given.
[65] A little further on, at p. 65, the plaintiff testified that after learning of Mr. Ovalle's death he went directly to the national anti-terrorism bureau to once again seek personal protection. The plaintiff did not testify about the refusal by the national anti-terrorism bureau to provide him with personal protection after Mr. Ovalle died.
[66] The plaintiff did testify that he told the national anti-terrorism bureau that he was going to go into hiding. It was when the plaintiff did not want to give a specific address for the place where he intended to hide that the police officer took out his file about the union demonstration in July 1998. It appeared from the plaintiff's testimony that the police officer took a harsher tone and referred to the plaintiff's file when the question arose of the summons to be sent to him for the court proceeding against the Shining Path.
[67] In my view, the tribunal's conclusion on this point was neither reasonable nor supported by the evidence.
[68] The plaintiff also testified that the tribunal erred in assessing the facts about the actions of the Shining Path and that the tribunal could not blame the plaintiff for the actions of the Shining Path.
[69] It is the tribunal's function to assess the credibility of testimony, and to do so it can rely on documentary evidence. In the case at bar the tribunal concluded that it was not credible that the Shining Path, which according to the documentary evidence is a well-organized entity, should act in the way described by the plaintiff. In the tribunal's opinion the plaintiff was making the Shining Path look like stage guerillas, and the Shining Path has too much fighting experience and is too well-organized to act in this way. The tribunal did not blame the plaintiff for the actions of the Shining Path. The tribunal simply did not find the plaintiff's explanations credible based on the evidence. In this regard, the tribunal's conclusion was justified and reasonable.
[70] On the question of whether the attackers were masked in the kidnapping of April 8, 1999, the plaintiff maintained that he was misled by the tribunal when the tribunal was bombarding the plaintiff with questions in order to unsettle him and undermine his credibility.
[71] In the plaintiff's submission, the tone used by the tribunal was intended to unsettle him and make him say what he had not said. Further, counsel for the plaintiff blamed the tribunal for acting in this way.
[72] In this regard, the following exchange took place at the hearing (p. 27 of the transcript):
[TRANSLATION]
BY REFUGEE CLAIMS OFFICER (to person concerned)
- And people suddenly appeared with a black pickup, forcing you to get into the vehicle.
A. Yes.
Q. Were the faces of these persons covered?
A. No, they had a muffler, as they are called.
Q. All of them?
A. Except the person driving, who was a woman.
and then at p. 31 of the transcript:
[TRANSLATION]
BY PRESIDING MEMBER (to person concerned)
Q. Were the men always masked?
A. Yes.
Q. All the time you were with them, they were always masked?
A. Yes, they were masked.
[73] At p. 37 of the transcript, the plaintiff explained:
[TRANSLATION]
BY REFUGEE CLAIMS OFFICER (to person concerned)
- OK, so we are in Dincote's office.
Q. What . . . what did you do there? You have made your statement, but what happened?
A. There was a group of police officers, they were going to ask us questions . . .
- break in tape-
BY PRESIDING MEMBER (to person concerned)
- Yes, continue.
A. So, they asked us to identify the terrorists, and I told them that we could not see their faces.
BY REFUGEE CLAIMS OFFICER (to person concerned)
- But they were, because you then said, we have checked the record, I imagine, people who were wanted. This suggests you could at least see them so you could . . .
Q. Otherwise, once you could not recognize them, what would be the use of checking this document?
A. But their functions, they told us, you can immediately recognize someone. Well, you cannot recognize anyone.
[74] In fact, the tribunal only asked two questions, and it was the Refugee Claims Officer who asked the other questions. The preceding exchange does not indicate that the questions were designed to unsettle the plaintiff, but shows that the tribunal and the Refugee Claims officer were trying to clarify the story.
[75] In this regard, the tribunal considered that the plaintiff had expanded his testimony with material that was not in his written account, which even made him contradict himself. The tribunal noted that the written account did not mention masked kidnappers and described a lengthy search in the photo album of terrorists. The plaintiff's written account did not refer to masked kidnappers. I do not feel that the tribunal erred in concluding that the plaintiff expanded his story at the hearing. The plaintiff himself gave the impression in his PIF that the kidnappers were not masked.
[76] In Basseghi v. M.E.I., [1994] F.C.J. No. 1867 (F.C.T.D.), Teitelbaum J. indicated:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answer should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[77] In my opinion, in view of the plaintiff's evidence the tribunal did not err in concluding as it did.
[78] Finally, the plaintiff argued that the tribunal had acted maliciously towards the plaintiff so as to undermine his credibility. The plaintiff explained that the conclusion that there was no credible basis entailed serious consequences since, under s. 49(1)(f) of the Immigration Act, the stay of execution of a removal order to which a plaintiff is subject will be for a period of only seven days.
[79] The plaintiff argued that it was unreasonable to conclude that there was no trustworthy evidence. The plaintiff alleged that he presented evidence of a credible basis for his claim. All the points raised by the tribunal were fallacious and unreasonable.
[80] Section 69.1(9.1) of the Immigration Act provides:
| (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. |
(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut. |
|
[81] In Foyet v. Canada (M.C.I.), [2000] F.C.J. No. 1591, Denault J. indicated:
Applying these principles to this case, the panel found that, having determined that the applicant was not credible, it could reject his claim and subsequently make a finding that the applicant had no credible basis for his claim.
In my view, the panel thereby erred in law by giving subsection 69.1(9.1) an interpretation no longer justified by Sheikh, as that case was decided under a completely different legislative framework.
In Sheikh, the Federal Court of Appeal was dealing with part of subsection 46.01(6) of the Immigration Act at a time when refugee determination was a two-stage process. The Court held that a first-level panel "errs in law in applying the test mandated for a full Refugee Division hearing rather than the lower threshold provided for a level one hearing."
An overly broad interpretation of Sheikh may lead to results far beyond the scope of the case, which, we note, was decided in 1990, before the 1992 amendments to the Immigration Act. A contextual analysis of the decision is therefore required. First, in that case, MacGuigan J.A. himself qualified the comments quoted above, which the panel failed to distinguish in adopting them, when he stated:
It is the first-level panel which has to be "of the opinion that there is any credible or trustworthy evidence" . . . It is the first-level tribunal which must base its decision on evidence which in the circumstances of the case is considered credible or trustworthy, evidently by it.
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant . . .
MacGuigan J.A. therefore distinguished between subjective evidence (testimony) and objective evidence (documentary evidence).
. . . . .
In my view, what Sheikh tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In this case, I believe that the panel erred in law by applying a general statement from Sheikh to a case which should have been dealt with under the new legislative framework, and the panel did so without even conducting the analysis recommended in that decision.
In my view, the new subsection 69.1 (9.1) of the Immigration Act also requires an analysis of all the evidence, both objective and subjective . . .
In Mahanandan, the Federal Court of Appeal as well affirmed that where documentary evidence which could affect the Board's appreciation of the claim is received in evidence at a hearing, the Board is required to indicate the impact that such evidence had upon the claim. Chief Justice Isaac stated:
Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
In my view, before making a no credible basis finding, the panel must always consider all the evidence. A broad interpretation of Sheikh is not consistent with subsection 69.1(9.1) of the Immigration Act.
Certainly, the panel need not expressly evaluate each piece of evidence in its reasons: however, given the significance of the provision at issue which, we would point out, was enacted some years after Sheikh, the context in which Sheikh was decided must be taken into account. In my view, a panel should exercise caution in following Sheikh when it decides to refer to that decision in making a no credible basis finding. The fact that a panel finds an applicant's testimony not credible does not, de facto, bring subsection 69.1(9.1) of the Immigration Act into play. As Madam Justice Tremblay-Lamer stated in Seevaratnam:
In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore this evidence should have been expressly assessed.
Therefore, in every case, a thorough analysis must be carried out to establish whether the documentary evidence is relevant. If it is, the panel is required to state express reasons, having regard to the objective evidence, to explain why subsection 69.1(9.1) of the Immigration Act is being applied. . . .
In this case, the panel found that the applicant failed to establish a credible basis for his claim, in accordance with subsection 69.1(9.1), after concluding that the applicant had adduced no credible or trustworthy evidence at the hearing on which it could have determined that the applicant was a Convention refugee.
In order to make such a finding, the Refugee Division had an obligation to assess all the evidence and to expressly state the reasons that led to its no credible basis finding. By failing to expressly assess all the evidence, both subjective and objective, and by focussing exclusively on the applicant's testimony, the panel committed an error that is subject to judicial review. Accordingly, its decision regarding the application of subsection 69.1(9.1) of the Immigration Act must be set aside.
[82] In the case at bar the evidence as a whole, both objective and subjective, was analyzed by the tribunal and the tribunal expressly indicated the reasons which led it to conclude that there was no credible basis. The tribunal found that the documentary evidence supplied by the plaintiff was not credible and gave detailed reasons for this conclusion. The tribunal also found that the plaintiff's testimony was not credible in light of the independent and credible documentary evidence. In my opinion, the tribunal was entitled after a detailed analysis of both the testimonial and documentary evidence to conclude that the plaintiff's claim lacked a credible basis.
[83] Although I indicated that the tribunal was not justified in concluding that the national anti-terrorism bureau had refused to protect the plaintiff on account of his arrest at the union demonstration in July 1998, in view of the tribunal's other reasons which amply support the conclusion that the plaintiff was not credible, I consider that there is no basis for intervention by the Court in the case at bar. The application for judicial review is accordingly dismissed.
[84] None of the counsel submitted questions for certification.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
September 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
COURT No.: IMM-6517-00
DOCUMENT(S) RECEIVED:
X Reasons for order and order
Order
X Main file
X Appendix B
FROM: PIERRE BLAIS J.
DATE: _________________________
TIME: _________________________
REGISTRY OFFICER: _________________________
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6517-00
STYLE OF CAUSE: MAXIMOS ANDRES FEBRES RIVEROS v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: August 2, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: September 11, 2001
APPEARANCES:
Odette Desjardins FOR THE PLAINTIFF
Greg Moore FOR THE DEFENDANT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada