Date: 20000609
Docket: IMM-6251-98
Ottawa, Ontario, June 9, 2000
Before: The Honourable Mr. Justice Pelletier
BETWEEN:
LUIS FRANCISCO ESTRADA DE LEON,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER AND ORDER
[1] Mr. De Leon is a national of Guatemala who is claiming refugee status. The Refugee Division of the Immigration and Refugee Board ("I.R.B.") dismissed his claim. It concluded that there were contradictions in his testimony and between his testimony and his Personal Information Form ("PIF"). Mr. De Leon obtained leave to file an application for judicial review of the dismissal of his claim for reasons that questioned several policies and practices of the I.R.B. Refugee Division in Montréal. At the hearing of the application for judicial review this Court noted that it could not dispose of the allegations involving the Refugee Division as the evidence filed, two affidavits riddled with hearsay, was not sufficient. At the same time, reading the transcript of the hearing given Mr. De Leon disclosed certain facts which the Refugee Division should have taken into account.
[2] Mr. De Leon explained that he was active in the political life of his village and consequently became president of the municipal electoral board in 1985. His political opponents offered him bribes in exchange for his cooperation. The plaintiff refused to cooperate and this caused certain political problems. Despite theses problems, the plaintiff agreed to be nominated again as president of the electoral board for the elections in November 1995. As a result of his refusal to cooperate the plaintiff received threats and was beaten by four unknown persons. He was also kidnapped and kept prisoner for 16 days, during which he was tortured and threatened. When the plaintiff was released he left Guatemala for the U.S. He stayed in the U.S. for a month. He then headed for Canada to claim refugee status.
[3] The Refugee Division objected that Mr. De Leon had contradicted himself several times. It said the following:
[TRANSLATION]
The tribunal concludes that the plaintiff's testimony is riddled with contradictions and so not credible. Without listing all the contradictions, the following are a few of them.
In reply to question 37 on his PIF, the plaintiff stated on line 71, and the tribunal quotes: "On May 3, 1995 my son left home and we had no further news of him . . .".
Further, in question 15 of the same PIF he indicated that his son had disappeared on May 3, 1995.
In Exhibit A-11 attached jointly, the point of entry documents, the plaintiff stated that his son went to Mexico: another contradiction.
The plaintiff stated in his testimony that he saw his wife two days after his arrival in Trenton, New Jersey in late June 1995. This testimony is contradicted by Exhibit A-11, which informed the tribunal that she accompanied her husband to the Canadian Consulate in New York on August 21, 1995: another contradiction.
At line 48 of his PIF, the plaintiff testified as follows, and the tribunal quotes: [TRANSLATION] "On December 16, 1994, my neighbour told me that I was wanted on the telephone: I went to his place". At the hearing the plaintiff testified that he went to a telephone exchange some streets away from his house: another contradiction.
On January 28, 1995 the plaintiff stated, at line 53 of his PIF, and the tribunal quotes: [TRANSLATION] "On January 28, 1995 I went to my work: I was working in a country school". The plaintiff testified at the hearing that on that day, the day he was attacked, the four individuals being unidentified, he returned to the school with the students and saw the teachers and students there and that the school was operating as usual on that day.
January 28, 1995 was a Saturday and, according to his earlier testimony, the school was only in operation from Monday to Friday inclusive.
The plaintiff could not reconcile any of these contradictions. The comments of MacGuigan J.A. in Sheikh[1] are directly applicable. The tribunal quotes:
. . . 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.
The tribunal does not believe any part of your testimony.
[4] In order to assess the justice of these objections, we must look at the transcript of the hearing.
[5] The Refugee Division first objected that the plaintiff stated that his son had disappeared when he fled to Mexico. The following is the transcript of the plaintiff's testimony:
[TRANSLATION]
BY RCO (addressing claimant)
Q. We understood, sir, that in your statement which you made at St-Bernard-de-Lacolle, the point of entry, on August 31, 1995 that you have a son who fled to Mexico. Who is that?
A. My elder son, named Luis Alfonso (phonetic).
Q. How old is Luis Alfonso?
A. I think now . . . he must at present be 21 years old.
Q. Right; and you said there that he fled to Mexico. Is that correct?
BY THE PRESIDENT (addressing RCO)
Q. Pardon?
BY RCO (addressing claimant)
Q. You said in your statement at the point of entry that he fled to Mexico. Is that correct?
BY THE PRESIDENT (addressing claimant)
- I think he should answer yes or no. Do you have . . .
BY MEMBER (addressing president)
- That's right.
BY CLAIMANT (addressing president)
- Yes, he . . . he fled.
BY THE PRESIDENT (addressing claimant)
Q. To Mexico?
A. Yes.
- O.K.
BY RCO (addressing claimant)
Q. In your reply to question15 of your form, you stated: "Disappeared since May 3, 1995". Why did you indicate disappeared and not . . . and not left for Mexico, for example?
A. Because when I came to the border, I was very nervous, I was very upset.
Q. Yes?
A. Then, I could not change my story once I got here, and was more calm. So I was able to put down my dates and it was better.
Q. But what is the truth: did he leave for Mexico or did he disappear?
BY INTERPRETER (addressing RCO)
Q. Excuse me, you are speaking at the same time and . . .
A. O.K.
BY RO (addressing claimant)
Q. Yes, what is the truth: did he leave for Mexico or did he disappear?
A. He disappeared to go to Mexico.
Q. Right, O.K. And the upset . . . the upset at the border, I understand, sir, but this form you completed on November 6, 1995, three months after the border . . . that is two and a half months after . . . your stay at the border?
A. No, I did not . . . from . . . May 3, the date on which he . . . he left, I never saw him again . . . I have not had any news of him.
BY THE PRESIDENT (addressing claimant)
Q. Sir, the question is quite simple. You knew that your son had left, had gone to Mexico. Why did you state in your Personal Information Form that he had disappeared? That is the question.
A. It was because he did not leave for Mexico, he escaped to Mexico.
BY MEMBER (addressing claimant)
Q. Sir, I . . . listen, I am looking at it, your answer to question 37, and I refer to line 71, I will read you exactly what you wrote here: "On May 3, 1995, my son left home and we have had no more news of him. I did several . . . to find him . . . to find him, I assume . . . but without success". There, in the statement at the point of entry, sir, you tell us that he is in Mexico. Which statement is correct, sir, if you please? Which statement is the truth, sir?
A. He left home and it was May 3. When I . . . when I inquired about him because I did not see him again, I was told he was in Mexico. My wife told me that.
[6] It can be seen from reading these passages that the refugee claims officer and the tribunal did not appear to accept that the plaintiff's son had disappeared, as the plaintiff knew he had gone to Mexico. If the plaintiff's son fled to Mexico four years ago and if he had had no news of him throughout that period, the plaintiff was right to say that his son had disappeared. The Refugee Division objected to a contradiction by the plaintiff that did not exist.
[7] The Refugee Division subsequently concluded that it found a contradiction between the plaintiff's testimony that he had seen his wife two days after his arrival in Trenton , that is in late June 1995, and Exhibit A-11 indicating that his wife accompanied him to the Canadian Consulate in New York on August 21, 1995. However, in reaching this conclusion the Refugee Division did not follow the plaintiff's testimony accurately. This is what the plaintiff said on this point:
[TRANSLATION]
BY RCO (addressing claimant)
Q. So, your wife left around June 9. Is that correct?
A. I wasn't there, I didn't see her leave.
Q. I know that, sir.
A. And I was not even aware she left.
Q. Yes, but you have seen your wife again since? - a question would seem to arise when we see . . . you left when?
A. Yes, she left a week later . . . a week after my detention.
Q. After the beginning . . . the beginning of your detention. Is that right?
A. Yes.
Q. Right. When did you see your wife again, sir?
A. Right. You know that my trip, my journey was uneventful. I came in by New York.
BY THE PRESIDENT (addressing claimant)
Q. Sir, sir . . .
A. . . . and from there I went . . .
Q. Please listen to the question. When did you see your wife again?
A. I saw her after my arrival. I arrived on June 27 and I saw my wife four days later.
BY RCO (addressing claimant)
Q. Where?
A. I met a member of my family who lives in Lorenceville (phonetic).
Q. Where is that?
A. In the city of Trenton.
Q. In New Jersey?
A. Yes, in New Jersey.
Q. Right. And the last time you saw your wife, when was that?
A. When we went to New York to apply for the visa at the Canadian Embassy.
Q. And when was that?
A. And we returned together. Excuse me, would you allow me to . . . sir, I would like to consult a document because the exact date on which I arrived . . . the date of my arrival is there.
Q. But if you do not have the exact date, sir, it is not important. Approximately when was the last time you saw your wife? Was it last week? Two months ago? Three years ago? When, sir?
A. We returned together from New York to Lorenceville. We spent just two days together.
Q. In 1995?
A. Then she went to the New Jersey city.
Q. Right. Did you arrive in the U.S. in 1995?
A. Yes.
Q. Right. Since that time, have you seen your wife again?
A. No. I have not seen her, I have not talked to her on the telephone and I have not written her, and she has not written.
. . . . .
BY RCO (addressing claimant)
Q. And did you go to the Canadian Consulate in New York with your wife?
A. Yes.
Q. Was this about 15 days before you arrived here in Canada?
A. Before - pardon?
Q. Before you arrived in Canada?
A. Yes.
Q. So, August 21, 1995?
A. Yes.
Q. So that means at that time it was approximately two months that you were in the U.S.?
A. Yes.
Q. And you said a moment ago that you saw your wife on the first two days after your arrival in the U.S., you did not see her after that?
A. No. We saw each other, but she was living with another family and I met her or contacted a member of my family in that place, in Lorenceville.
Q. Yes, but what I am saying to you, sir, is about dates. What I understood a moment ago - wait a moment, sir - . . . .
A. And we spent some time together.
Q. Right, but I . . . I understood from your testimony a moment ago that shortly - on the day or . . . one or two days after your arrival in the U.S. you met with your wife, you were together for two days and after that you did not see her again?
A. No. She was at someone's home and I went to stay with someone else. We talked and we spent - well - a month and a half or so when we were seeing each other nearly every day.
[8] The plaintiff's testimony was straightforward and clear. His wife arrived in the U.S. first. Then, four days after her arrival in the U.S. the plaintiff was reunited with his wife at Lorenceville, a town close to Trenton, New Jersey. The plaintiff and his wife lived separately, but they saw each other nearly every day. On August 21, 1995 they went to New York together and they returned together to Lorenceville. Subsequently, they spent two days together before the plaintiff's wife went back to Guatemala and he came to Canada. The plaintiff explained the sequence of events clearly. For the Refugee Division to conclude that there was a contradiction, it had to ignore the plaintiff's testimony.
[9] The Refugee Division concluded that there was another contradiction when the plaintiff stated in his PIF that he had received a call from his neighbour, although at the hearing he testified that he had received the call in question at a telephone exchange some streets away from his house.
[10] The plaintiff testified as follows:
[TRANSLATION]
A. Right. I did not . . . I did not write it in the . . . in my statement at the point of entry, but I wrote it in my background statement. On December 16, 1993 . . . no, no, sorry, 1994, I was called from the telephone office to . . . well, there was a message for me.
Q. Where was that, sir?
A. At Salcaha, the El Carmen (phonetic) district.
Q. But at work? - at home? - at a relative's house?
A. At home, because I was on leave.
Q. Well, right, and then, what happened?
A. Then, it was 9:00 a.m. when the fellow from the office called me to tell me there was a message for me. I then went to his office . . . I went to the office and when I was in the office the . . . a voice, it was a woman's voice, a woman, she said: "If you want to continue . . . or if you want to stay alive, save yourself, get away".
Q. Who was this woman?
A. Then, I . . . I asked the fellow in the . . . the office who was the person that telephoned. He told me it was a long distance call.
Q. But it is . . . what is it, this office . . . telephone exchange? I do not understand.
A. It was like a private exchange.
- Right.
A. A telephone exchange.
Q. How far away from you was it?
A. This office was located five blocks . . .
Q. Five blocks from your home?
A. . . . away from my house.
Q. Right. And I understand that this person from the office called you at home?
A. Yes, that is how he works. He has . . . he has several telephones. He receives all the messages and is paid to pass on these messages.
BY MEMBER (addressing claimant)
Q. It was an office, sir, where you got the call? Is that right?
A. Yes.
Q. It was an office. Far from your home?
A. No, five blocks away from my home.
BY RCO (addressing claimant)
Q. At lines 47 and following of your form, sir, you said: "On December 16, 1994 my neighbour told me that I was wanted on his telephone: I went to his place. The person speaking was a woman . . . " and so on. You are speaking of your neighbour (inaudible) in a telephone office located five or six blocks away from your home?
A. That is because the neighbour has two telephones at his home. He has his private office at home. It was Oscar Macialiego (phonetic) . . .
Q. But you . . .
A. . . . Oscar Macialiego.
Q. . . . you took the call at your neighbour's home or at the telephone office five or six blocks away?
A. Yes, yes, five blocks from the house, it was at the neighbour's house. It was because the neighbour who lived five blocks from my house had his telephone, and then he asked for another one. So he had two telephones. He paid the telephone company, but he was paid to take messages.
[11] In his PIF the plaintiff described these facts as follows:
[TRANSLATION]
. . . on December 16, 1994 my neighbour told me I was wanted on his telephone; I went to his place; the person speaking was a woman . . .
[12] When this contradiction was put to him the plaintiff gave a logical explanation which the Refugee Division did not consider.
[13] Finally, the Refugee Division found a major contradiction when the plaintiff stated he was the victim of an assault on his way to work at the school on January 28, 1995, when January 28, 1995 was a Saturday and the plaintiff had already testified that the school was shut on Saturdays.
[14] First, it should be noted that the plaintiff is an administrator and there was nothing strange in his going to the school on a Saturday. The plaintiff stipulated the following in this regard:
[TRANSLATION]
A. This incident occurred on January 28.
Q. 1995?
A. Yes.
Q. Where?
A. Beside the . . . the river, the Samala (phonetic) River.
Q. Uh-huh. What were you doing on that day?
A. I left home to go to the school and I walked along the river.
Q. What were you going to do at the school?
A. I was going to work.
Q. To teach?
A. I was an administrator.
Q. Were you going to give courses or what?
A. When I began working at the school, yes, I gave courses because there were only five teachers.
Q. On January 28, 1995 you were going to give courses?
BY THE PRESIDENT (addressing claimant)
- If you please, please, please, sir, if you please . . .
A. Yes, yes.
- . . . allow . . .
A. No, I was an administrator. My work was of an administrative nature.
- Please leave the interpreter time to translate the questions into your mother tongue before trying to answer. This is very important for you. O.K.? Thank you.
BY RCO (addressing claimant)
Q. Was the school open that day?
BY THE PRESIDENT (addressing RCO)
Q. You . . . you are speaking of January 28, 1995?
A. January 28, 1995.
BY CLAIMANT (addressing RCO)
- I was the one who opened the school.
[15] It was not the plaintiff who mentioned the presence of students and teachers at the school on the day he was attacked. First, the refugee claims officer led the plaintiff to say that the school was not open on Saturdays and Sundays. Then, he changed the subject but returned to it later:
[TRANSLATION]
Q. Right. You were a teacher in Guatemala?
A. Yes.
. . . . .
BY RCO (addressing claimant)
Q. Was the school open on that day?
BY THE PRESIDENT (addressing RCO)
Q. You . . . you are speaking of January 28, 1995?
A. January 28, 1995.
BY CLAIMANT (addressing RCO)
- I was the one who opened the school.
BY RCO (addressing claimant)
Q. Were there classes at the school on that day?
A. Yes.
Q. The teachers and students were there?
A. The teachers went to the school by another route because they came by car.
Q. The teachers went to the school on that day, January 28, 1995: is that correct?
A. Yes.
Q. Right. And the students as well? - the students?
A. Yes.
Q. Right. How many students were there in the school?
A. There were 322.
Q. Three hundred and twenty-two. At what level?
A. It was a primary school.
Q. Right, for children of what . . .
A. Primary . . .
Q. . . . 5 or 6 years old to 12 or 13?
A. Perhaps, well, to . . . from 6 to 15 because there were some who were in fact . . . who were older than the others . . .
- Right.
A. . . . but they were still there.
- Right.
BY THE PRESIDENT (addressing claimant)
Q. Six to fifteen years old?
A. Yes.
BY RCO (addressing claimant)
Q. You saw the students and teachers on that day?
A. The students that used the same . . . the same route as myself, they walked behind me.
BY MEMBER (addressing claimant)
- No, that is not an answer, sir.
BY THE PRESIDENT (addressing claimant)
Q. On January 28, 1995, when you personally opened the door or doors of the school, did you see students on that day? Did you see teachers on that day?
BY MEMBER (addressing claimant)
Q. Yes or no, sir?
A. No. No, I did not see them because I was beaten on the way.
[16] After listening to the account of the assault of which the plaintiff was a victim, the officer laid a trap for him.
[TRANSLATION]
A. Well, I was there. Well, the children who were coming, who were already at school, they helped me, they picked up my . . . my briefcase and everything and I got up and I went to . . . I went on foot because there was no house there, it was . . . I went along the river.
BY RCO (addressing claimant)
Q. Uh-huh. So, the students helped you?
A. Yes.
Q. You went to the school?
A. Yes, because the school was about 500 metres away.
Q. Right. Once you got to the school, was the school . . . did you open the school? Was the school operating as usual or what?
A. Yes, the school was operating, but I . . . I left the school.
Q. Right. You saw your teachers at the school at that time?
A. Yes, yes.
- Right.
A. They had all arrived.
Q. You are sure the date of the accident was January 28, 1995?
A. Yes, yes.
Q. What day of the week was that?
A. I think it was Thursday.
- Uh-huh. January 28, 1995 was a Saturday, sir.
Q. January 28?
- 1995 was a Saturday. I thought I understood from your testimony a moment ago that the school was closed on Saturdays and Sundays.
A. Yes, yes, yes, the school was . . . was closed on Saturdays. I had . . . I had additional activities and sometimes went to the school in the community in the evenings or on Sundays.
- Yes, but your students were there.
[17] This cross-examination was worthy of a criminal trial. There is no doubt that the officer had decided in advance that the date of the attack provided an opportunity to find a contradiction. The possibility of error about the date of the attack does not appear to have been considered by the officer. Neither by the officer nor, unfortunately, by the Refugee Division was there any consideration of the possibility that the plaintiff was an honest person, but mistaken.
[18] It is true that it is not the function of the tribunal or the officer to favour a claimant's testimony. The burden of proof is always on a claimant. Contradictions and discrepancies are important indications that a story is untrue. As it is not in a good position to check contradictions and inconsistencies the tribunal must rely entirely on the claimant in order to determine the truth about his situation. If a claimant does not seem trustworthy in certain details, the Refugee Division is justified in finding that he is not trustworthy in other aspects of his claim: but all this assumes that the Refugee Division respects the claimant and his testimony.
[19] It is also true that the refugee claims officer and the tribunal are entitled to cross-examine the plaintiff and, if circumstances require, that cross-examination may be hostile: but a search for the truth should not be confused with harassing the plaintiff. In the case at bar the tribunal found contradictions where none existed and, to arrive at those contradictions, did not have regard to the material before it within the meaning of s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. The decision must accordingly be set aside and the case referred back for re-hearing by a tribunal of different members.
[20] In view of the allegations which formed part of the application for judicial review it is very likely that the plaintiff left the hearing room feeling that his case was lost from the outset. In addition to being accused of contradictions where none existed, he also had to tolerate remarks which may have seemed insulting to him. The Refugee Division has a central part to play in carrying out Canada's refugee obligations. Persons who are designated to act as members or as refugee claims officers represent Canada to claimants. They must therefore behave in such a way as to preclude any suggestion that Canada is not willing to accept refugees, even though it reserves the right to make sure that they are acting in good faith. It is a task that calls for exemplary probity and integrity. The fact that there are shortcomings in the conduct of a hearing from time to time only emphasizes the importance of impartiality and openness of mind by those to whom this task is entrusted.
ORDER
The decision of the Refugee Division must be set aside and the plaintiff's refugee status claim referred back to the Refugee Division for re-hearing by a tribunal of different members.
|
J.D. Denis Pelletier Judge |
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6251-98
STYLE OF CAUSE: LUIS FRANCISCO ESTRADA DE LEON
v. MCI
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: DEC. 7, 1999
REASONS FOR ORDER AND ORDER BY: PELLETIER J.
DATED: JUN. 9, 2000
APPEARANCES:
STEWARD ISTVANFFY FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] Sheikh, Ali v. M.E.I. (F.C.A., A-521-89), MacGuigan, Iacobucci and Desjardins JJ.A., July 4, 1990.