Date: 20060220

Docket: IMM-4257-05

Citation: 2006 FC 229

Ottawa, Ontario, February 20, 2006

Present: The Honourable Mr. Justice Martineau

BETWEEN:

EDGAR GENARO GARCIA HIDALGO

SOCORRO DEL P CAMINO HACHA

PEDRO ANDRE GARCIA CAMINO

MARIA EDUARDA GARCIA CAMINO

EDGAR ALEJANDRO GARCIA CAMINO

Applicants

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated June 16, 2005, denying the refugee claim of the applicant, his wife and their three minor children on the grounds that they were not “Convention refugees” or “persons in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

FACTUAL BACKGROUND

[2]               The applicants are citizens of Peru. They fear persecution in their country because of the perceived political opinion of the principal applicant, who is a member of the political party FRENATRACA (National Front of Workers and Peasants). He acted as General Coordinating Officer of the South-Zone region from 2000 to 2005. During the elections of January 2000, Luis Caceres Velasquez, the founder of FRENATRACA, and his son, Roger Luis Caceres Perez (collectively, the Caceres), were elected to the Arequipa Department after a coalition was formed between FRENATRACA and FREPAP, another political party. On July 25, 2000, at the swearing in, the Caceres changed political allegiances and joined with the Peru 2000 party, the party in power, whose leader was then Alberto Fujimori, the President in office at that time. This allegedly had a negative impact on the life of the applicant and his family because of his close ties with the Caceres. The principal applicant alleges that he then became treated as a “defector”.

[3]               After the new President Alejandro Toledo came into power on July 21, 2001, the situation allegedly deteriorated. The political platform of the new President was then based on his firm intention to fight the corruption in the former government of President Fujimori. Hence, on March 5, 2002, the principal applicant says that he began to receive anonymous phone calls. He received death threats based on his membership in FRENATRACA. His vehicle was vandalized twice, first in January 2003 and the second time on July 28, 2004. His children had to change schools as a precautionary measure. Their eldest son began to suffer from vitiligo, which his physicians attributed to the stress he endured at school. Further, in an anonymous phone call received after July 28, 2004, the applicant was told specifically that the time of the defectors and their allies had come. In fact, the applicant had filed a complaint but the police did not agree to investigate it because he could not specify the identity of the person or persons involved.

[4]               When he arrived in Canada, on September 28, 2004, the applicant declared to the immigration officer that his problems had begun around January 2000, when Luis Caceres Velasquez had left FRENATRACA. When Toledo was elected President, he decided to pursue all of those who had worked with Fujimori, directly or indirectly.

[5]               The applicant filed two versions of his answer to question 31 of his PIF. Specifically, the applicant filed a first version of this answer on or about October 26, 2004. In this first version of his story, the applicant was consistent with his first statements to the effect that he had been a victim of President Toledo’s fight against those who, directly or indirectly, had been associated with President Fujimori. At lines 36 to 38 of his story, the applicant stated moreover that corruption charges had been brought against the Caceres in October 2002. He did not however establish any connection between the charges brought against these people and his own fear of persecution. Further, it is worthwhile to point out that in this first version of his PIF, the applicant did not refer to any specific fact involving him, in relation to the corruption charges brought against the Caceres. For example, he did not indicate that he could have information relevant to this matter.

[6]               At the beginning of the hearing of April 18, 2005, the applicant filed an addition to his answer to question 31 of his PIF, amending lines 36 to 38 of his story. In this amendment, he mentions for the first time that as a coordinator for the South-Zone region represented by the Caceres in Congress, he was aware that they had accepted bribes to abandon the FRENATRACA-FREPAP alliance and join Fujimori’s party. In this amendment, the applicant also established for the first time a connection between his fear and the issue of the bribes received by the Caceres. He stated for the first time that the Caceres had threatened him as well as his family, because they did not want him to reveal what he knew about them to the Peruvian authorities.

[7]               At the hearing, the Board confronted the principal applicant with the above-mentioned discrepancies. He admitted that he had not mentioned that he feared the Caceres in his statement at the port of entry. He claimed that his nervousness was the reason for his silence on that point. Indeed, he explained that he had not indicated the risk the Caceres represented for him in the first version of his answer to question 31 because even though Luis Caceres Velasquez had been at trial when he wrote his story, he had not yet been convicted.

IMPUGNED DECISION

[8]               The Board decided that the applicants were unable to satisfy the burden of establishing that they had a well-founded fear of persecution or that they could face serious risk if they were to return to Peru, because of the contradictions and inconsistencies noted in their story.

[9]               With regard to the two complaints brought by the principal applicant, the Board noted that they did not allude to the fact that the applicant had been targeted because he belonged to a group of defectors. Further, the Board alleged that the applicant had changed his version of the facts with regard to the persecutors’ identities.

GROUNDS FOR REVIEW

[10]           The applicants submit that the Board erred in assessing the evidence. The evidence established that the principal applicant’s fear of persecution is well founded and that it stems from grounds relating to political opinion. Therefore, the Board erred in requiring that the applicant establish the underlying reasons for the persecutor’s death threats. Yet this was not the issue to assess, especially since the threats could have come from different groups with different motives for persecuting the applicant and his family.

[11]           The applicants submit that the Board erred in finding that the documentary evidence provided by the applicants was inconsistent because the complaints did not mention that the principal applicant had been targeted based on his membership in a defecting party. The applicants also allege that the Board should not have found it odd that the applicant had changed his version of the facts with regard to the persecutors’ identities. The Board determined that this statement was inconsistent with his PIF and that the applicant’s explanations were not very convincing. Yet, the contrary should be inferred. The newspaper article found on the Internet, addressing the recent conviction of Luis Caceres Velasquez for corruption, was an additional factor justifying the fear of persecution on political grounds. The Board therefore incorrectly interpreted the documentary evidence because this element established that Luis Caceres Velasquez was involved in a case of corruption, as the principal applicant stated.

[12]           Finally, the applicants claim that the Board erred in law in determining the scope of Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), 71 D.L.R. (4th) 604. Relying on the decision in Foyet v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1591 (F.C.T.D.) (QL), 187 F.T.R. 181, they argue, inter alia, that the Board could not apply a general principle from this decision to a matter that ought to have been addressed in the new legislative framework.

ANALYSIS

[13]           I cannot accept any of the applicants’ arguments. They are essentially disputing findings of fact. The standard of review that generally applies to credibility issues is that of patent unreasonableness. In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 at paragraph 4 (F.C.A.) (QL), 160 N.R. 315, the Federal Court of Appeal stated the following:

[W]ho 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.

[14]           After all, the Board was in the best position to assess the credibility of the principal applicant; as the trier of fact it was entitled to assess the evidence and to give it the weight that it deserved. According to the applicants’ learned counsel, the Board erred in its assessment of the fear of persecution when it asked the principal applicant to establish the facts underlying the persecutor’s death threats. He submits that the Board should not have analysed this question in its assessment of whether the fear of persecution was well founded. I do not agree. It is clear here that it is rather in the context of assessing the credibility of his story that the Board asked the principal applicant this question.

[15]           According to the applicants, the Board also erred in determining that the principal applicant’s complaints did not at all allude to the fact that he was targeted because he was a member of a deserting party. The Board’s explanations are nevertheless explicit:

However, the panel noticed that the complaints filed in P-7 and P-8 do not make any mention of the fact that the claimant was targeted because he belonged to a crossbencher party.   In the complaint P-7, dated April 10, 2002, the principal asylum claimant stated that he was perhaps the victim of members of his party who were jealous of the fact that he had been named general co-ordinating electoral officer. In the complaint P-8, dated July 20, 2004, the reasons invoked by the principal asylum claimant are no clearer.  He stated that he does not know who made these threats towards his family and added that it is probable that he was the victim of political backlash due to the fact that he was a city councilor when Mr. Luis Caceres was the Mayor. The asylum claimant was unable to reconcile the details of these two complaints with his PIF, according to which he was targeted because of his ties to the crossbenchers.

[16]           In my opinion, this last passage must be read as a determination bearing on the principal applicant’s credibility rather than as a question bearing on the appreciation of the facts, as the applicants’ counsel submits. Indeed, the principal applicant himself had several theories regarding the reasons that prompted the persecutor or persecutors to perpetrate acts against him and his family. Taking into account the various statements of the principal applicant, we must believe that it was reasonable for the Board to determine that the principal applicant did not manage to reconcile the substance of his complaints, his PIF and the content of his testimony at the hearing.

[17]           Whatever the case may be, the Board could reasonably doubt the truthfulness of the principal applicant’s story based on the serious inconsistencies regarding the persecutors’ identities. In fact, he had failed to mention the identities of the persons he claimed to fear until he had filed, at the hearing, an addition to lines 36 to 38 of question 31 of his PIF. According to the principal applicant, he only specified the persecutors’ identities. The Board believed, for its part, that changing the persecutors’ identities amounted in the facts to effecting a major change to his story. The Board’s position is not patently unreasonable. After noting the principal applicant’s new statement and attempting to obtain clarifications from him, the Board did not consider his explanations very convincing. There is no basis to intervene on this point.

[18]           At the end of its reasons, the Board refers to a passage from Sheikh:

I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim . . . In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.

[19]           The applicants’ counsel argues that the Board erred in law in determining the scope of Sheikh. The Board could not apply a general principle from that decision to this matter. There was a great deal of documentary evidence in the record. The authenticity of the exhibits was not at issue. There was nothing to cast doubt on the principal applicants’ political activities. In Foyet, supra, raised by the applicants’ counsel, this Court held that the Board cannot find that there is no credible basis for a claim when it has before it independent and credible evidence. Yet, in this case, the Board did not find that the claim had no credible basis. The principles of Foyet are simply not applicable in this case. In any event, any error by the Board in terms of the application of Sheikh does not appear to me to be determinative in this case. This application for judicial review must therefore fail.

ORDER

THE COURT ORDERS that the application for judicial review be dismissed. No question of general importance was raised and no such question shall be certified.

“Luc Martineau”

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-4257-05

STYLE OF CAUSE:                          Edgar Genaro Garcia Hidalgo et al. v. Minister of Citizenship and Immigration

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      February 7, 2006

REASONS FOR ORDER

AND ORDER:                                   MARTINEAU J.

DATE OF REASONS:                      February 20, 2006

APPEARANCES:

SOLICITORS OF RECORD: