Ottawa, Ontario, November 14, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
AMPARO DE JESUS CANAS RIVERA
MIGUEL ALEJANDRO PENA CANAS
KELLYANA ALEXANDRA PENA CANAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Pedro Alejandro Pena, is 42 years old and has come to Canada from Colombia with his wife, daughter, age 18, and son, age 14 to seek refugee protection. The Applicant worked for a government-owned company, Telecom, for 13 years. The government closed the company and the Applicant was laid off. He was offered a settlement package of approximately $50,000 USD. He claims that at the end of July 2003, he began to receive threatening phone calls from the guerrilla group, Fuerzas Armadas Revolutionarias de Colombia ("FARC") demanding he give them his severance pay. After repeated threatening calls, and an attempted kidnapping of his daughter, he fled to Canada via the US as soon as he obtained a visa to travel to the US.
[2] The Board held that there was insufficient credible or trustworthy evidence to support the Applicant's allegations. The Board did not believe the Applicant was of interest to the FARC and found that he had not established that the FARC was behind the extortion attempts or the attempted kidnapping of the daughter.
[3] The Applicant is seeking judicial review arguing that the Board made seven errors that cumulatively make the decision patently unreasonable.
[4] As the decision is substantially a fact driven determination there is no dispute between the parties that the standard of review is patent unreasonableness.
[5] The Applicant points out that the Board erred in respect of:
i) years of service the Applicant and with his company 18 instead of 13;
ii) he landed in Fort Lauderdale instead of Miami;
iii) the number of years which the Applicant had worked as stated by the Board.
All of these instances were indeed errors but they are immaterial and in no way affect the decision.
[6] The Applicant also alleges that the Board misunderstood the evidence regarding:
iv) his son's bicycle;
v) when his daughter left school;
vi) the reason why he stayed eight months subsequent to the threat; and
vii) his report to the police regarding the FARC threats.
[7] Each one of these instances does not concern a misunderstanding of evidence, but instead is a disagreement with how the Board interpreted the evidence.
[8] The Applicant stated in his Personal Information Form with respect to the theft of his son's bicycle:
While we recognize that this was probably just a common criminal incident, there are two factors that frightened us. First, we know the FARC recruits children of that age. Second, it showed how vulnerable we are.[1]
Clearly, the Applicant raised the link between the FARC and the theft. Thus, the Board was justified in dismissing the whole issue as not being credible[2] .
[9] The Applicant stated with respect to his daughter's schooling:
PRESIDING MEMBER: When did your children stop - when was the last time
your children go to school?
MALE CLAIMANT: My two children?
PRESIDING MEMBER: Yes.
MALE CLAIMANT: My daughter left Colombia in January 2004 and my
son attended school until May 4th, 2004. May 5th
2004.[3]
The Applicant suggests now that there is no evidence that the daughter went to school after the kidnapping. That may be true, but given the nature of the question and the answer, one can hardly criticize the Board for having interpreted the testimony as suggesting the daughter went to school until January.
[10] The Board stated:
I find the claimant's stay in Colombia for nearly eleven months indicative of the lack of fear for his life. I find the claimant's allegations about phone threats not truthful and not credible.[4]
The Applicants points out that he left within a week of obtaining the visa. The Board's interpretation that waiting for a visa shows a certain lack of fear is certainly not unreasonable, given that during that time both the Applicant and his wife worked and openly went about their business.
[11] The Applicant suggests that the Board ignored the fact that he made a report to the police. Actually, the Board referred to it. However, as the report does not refer to the FARC, and as there is no other evidence tying the threat to FARC, the Board did not misinterpret the evidence when it stated:
I find the claimant's allegations that the FARC was looking for him and made threats to his family by phone, because he did not pay the money that they wanted, not credible. I find that the claimant fabricated his allegations and that the claimant's allegations are not truthful.[5]
[12] In a nutshell, the Applicant does not like the way the Board interpreted the evidence. However, as the trier of fact, that is the Board's primary function. Unless there is a patently unreasonable finding, this Court will not interfere in such findings.
[13] Here, the Board found on the basis of the evidence presented that the Applicant was not credible for the following four reasons:
1) The FARC is notoriously vicious in punishing persons who ignore their demands, yet it did not take any action against the Applicant who allegedly ignored them for 11 months.
2) It is even more improbable that the FARC not only tolerated the Applicant's failure to remit the money, but that it took no retaliatory action against the Applicant's wife or children.
3) The FARC's alleged demand was unspecified, it is highly improbable that the FARC would ask for money without naming a specified sum.
4) The fact that the Applicant stayed for 11 months after receiving the alleged FARC threat is indicative of a lack of fear.
[14] These four findings are certainly not patently unreasonable and consequently this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
" Konrad W. von Finckensetein "
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE:
PEDRO ALEJANDRO PENA
AMPARO DE JESUS CANAS RIVERA
MIGUEL ALEJANDRO PENA CANAS
KELLYANA ALEXANDRA PENA CANAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
| Joel Etienne |
|
FOR THE APPLICANT |
| Bernard Assan |
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Joel Etienne Toronto, Ontario |
|
FOR THE APPLICANT |
| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON |
|
FOR THE RESPONDENT |