Date: 20040408
Docket: IMM-856-03
Citation: 2004 FC 548
BETWEEN:
DONATO OBANDO CARRILLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Mr. Carrillo seeks refuge in Canada because he fears persecution at the hands of Costa Rican government authorities. He says he is a person with knowledge of government corruption. He claims to be in need of protection as a person in danger of being tortured or at risk of losing his life or being subjected to cruel and unusual treatment or punishment should he be returned to Costa Rica.
[2] The Refugee Protection Division of the Immigration and Refugee Board determined that he was not a Convention refugee or otherwise a person in need of protection within the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Mr. Carrillo was given leave to seek a judicial review of that decision.
[3] Mr. Carrillo, who was 51 years of age at the time of his hearing, is a citizen of Costa Rica. While a policeman in the mid-1980's, he was assigned to investigate the activities of a gang headed by one Rudolfo Ramirez which was suspected of drug trafficking and murder. As a result of the investigation, Mr. Ramirez and other gang members were arrested, convicted and sentenced to terms of imprisonment averaging about twenty-five years.
[4] After Mr. Ramirez' sentence in November 1996, Mr. Carrillo said he was attacked by three men whom he believes were policemen in cahoots with Mr. Ramirez. He complained to his superiors but they said they lacked jurisdiction to investigate. He pursued the matter with the Organization of Judicial Investigation, but they said there was insufficient evidence.
[5] In February 1987, he was attacked again. Again he believes his assailants were policemen. In any event, they said they were threatening him on behalf of Mr. Ramirez.
[6] As a result, he left the police force and worked on various plantations. However, in November 1998, while returning from work, he was beaten by two men who informed him of Mr. Ramirez' release from jail. Several months later, he was grabbed by three men, two of whom were the same who attacked him in November 1998, forced into a vehicle and told he was being driven to meet with Mr. Ramirez. He managed to escape, hid at his mother's home and then left Costa Rica.
[7] The issue before the Board, and indeed before this Court in review of that decision, is Mr. Carrillo's credibility. The Board found his evidence was not credible or trustworthy because of a number of inconsistencies and implausibilities. As well, he was unable to corroborate key aspects of his story notwithstanding that he had the opportunity to file post-hearing documentary evidence, as the Board had made Information Requests.
[8] Counsel for Mr. Carrillo readily concedes that there are some inconsistencies in that some facts stated during his testimony were not set out in his Personal Information Form (PIF) or that there were minor contradictions between the information set out in his PIF and his testimony. However, he says that there were very satisfactory explanations for these discrepancies and that the Board was not entitled to consider his story as being implausible. It was urged upon the Court that the Board engaged in an undue microscopic examination of the evidence. More colloquially, the Board was accused of "nit-picking".
[9] Counsel for the Minister, on the other hand, suggests that it is Mr. Carrillo who is subjecting the Board's decision to undue microscopic examination. On a fair and balanced reading of the decision, and the record, it cannot be said that the findings of fact were patently unreasonable. The decision should survive the most stringent standard of judicial review, and should not be set aside. Furthermore, the claimant never established his case in the first place. His case is not based on Mr. Ramirez, but rather on his alleged knowledge of government corruption.
[10] The argument in reply is that Mr. Carrillo did prove his case, had it not been for the refusal of the Board to believe him.
[11] I find that the Board did overreach itself in some respects. The issue is to determine how germane that overreaching was to the core of the case, which is government corruption.
[12] For instance, Mr. Carrillo testified that he was a witness at the trial of Mr. Ramirez. In his PIF, he did not refer to a trial. However he did refer to the arrest and conviction, so it has to be implied that there was a judicial process of some sort.
[13] With respect to the incident in 1999, in his PIF he said he was abducted and pushed into a car, whereas he testified that he was pushed into a truck. In his PIF he said he pushed his way out of the vehicle while he testified that he jumped from it. These are minor points.
[14] He testified that his abductors fired shots at him. This was not mentioned in his PIF. This may not be so insignificant.
[15] He testified that the gang had sought him out at the home of his wife, and later at the home of his mother. In his PIF he mentioned he had been sought out at a number of places, but did not specifically mention his wife's and mother's abodes. I doubt that this should lead to a conclusion that Mr. Carrillo is a liar.
[16] Although Mr. Carrillo provided documentary evidence that he was a policeman, he was unable to provide such evidence for the crucial period at issue, the time he was investigating Mr. Ramirez. Indeed, even after the hearing, he was unable to provide any sort of evidence that Mr. Ramirez existed and that there had been a trial.
[17] However, the key factor tying Mr. Ramirez to alleged police corruption is the various physical attacks on Mr. Carrillo. Mr. Carrillo never stated that his assailants were policemen. He said he believed they were policemen because they wore their hair short, had no moustaches and carried .38 caliber revolvers. In my view, this testimony is not covered by the presumption a witness is telling the truth. The witness was not testifying as to fact, but as to his belief. His belief that his assailants were policemen does not make them so. The Board was not satisfied that he had established in fact that his assailants were policemen. Furthermore, the refusal of his superiors to act because of what they perceived to be a lack of evidence, and lack of jurisdiction, does not lead to the conclusion that they were corrupt.
[18] I take guidance from the decision of Joyal J. in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81. He said that "although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. -- It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals". Joyal J. noted that the Supreme Court had found eighteen errors in a judge's charge to a jury in a criminal case but that in the absence of any miscarriage of justice the appeal could not succeed. He went on to point out that it matters not that a different Panel may have come to a different conclusion. We have also been warned against overzealous microscopic examination by Muldoon J. in Annalingam v. Canada (Minister of Citizenship and Immigration) (2000) 6 Imm. L.R. (3rd) 316 and by Russell J. in Rivera-Velasquez v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 1322.
[19] It has been well established in cases such as Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) that a finding of fact made by the Board must stand unless it is patently unreasonable. Keep in mind the advantage the Board had of seeing the witness.
[20] A finding of fact is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, Sopinka J. at pp. 340, 341).
[21] Furthermore, the finding was not made "without regard for the material before it" as per s. 18.1 (4)(d) of the Federal Courts Act. There was no evidence before the Board that Mr. Carrillo's assailants were policemen. Therefore, it was not unreasonable for the Board to conclude there was no evidence of government corruption, and to dismiss the application.
[22] For these reasons, the application for judicial review is dismissed.
"Sean Harrington"
J.F.C.
Toronto, Ontario
April 8, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-856-03
STYLE OF CAUSE: DONATO OBANDO CARRILLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 6, 2004
REASONS FOR ORDER BY: HARRINGTON J.
APPEARANCES BY:
Mr. Marc Boissonneault
FOR THE APPLICANT
Ms. Matina Karvellas
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marc Boissonneault
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040408
Docket: IMM-856-03
BETWEEN:
DONATO OBANDO CARRILLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER