Date: 20000111
Docket: IMM-2021-99
OTTAWA, Ontario, the 11th day of January, 2000
PRESENT: The Honourable Mr. Justice Rouleau
Between:
GODOFREDO NESTO SANCHEZ SALGADO
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is dismissed.
| J. |
Certified true translation
Bernard Olivier
Date: 20000111
Docket: IMM-2021-99
Between:
GODOFREDO NESTO SANCHEZ SALGADO
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Refugee Division (the panel) rendered on March 25, 1999 declaring that the applicant is not a Convention refugee.
[2] The applicant is originally from Peru. He claims refugee status because he says he was persecuted for political reasons.
[3] Mr. Salgado alleges that he is a member of the Aprista party of Peru (APP), which is fighting for enforcement of the rights of the inhabitants of the Peruvian forests and against the military"s abuses of those inhabitants. He says he made daily radio broadcasts. In 1988, he participated in various trade-union demonstrations. He says he was struck and arrested four times during such demonstrations. During one of these arrests, he was jailed for a week.
[4] In 1990, having finished his training as a medical technician, the applicant was employed by the ministry of health to provide services in rural and urban zones for the institute of social security. One year later, he opened his own testing laboratory. In 1992, the applicant joined with other professionals to provide medical care to the inhabitants of the Satipo region.
[5] The applicant submits that on April 30, 1995, when he went to the home of a person named Francisco to give a blood transfusion to his son, six soldiers broke into Mr. Francisco"s home in a kidnap attempt. During his radio broadcasts, the applicant had denounced abuses committed by the army. He also submits that he had sought to teach people that they had rights and that agencies existed that could help them enforce those rights. Following these denunciations, some soldiers broke into his laboratory in order to destroy his equipment and arrested and interrogated him.
[6] The applicant says he complained to the police in Satipo. He submits that on October 15, 1995, six soldiers took him to the military barracks. He was told to withdraw his complaint and to say nothing more about the army on the radio. Three days later, he told about his experience on the radio. That evening, four soldiers came to his home. He says he was struck and thrown in the river, and was rescued by a peasant. He then fled to the village of Paratushali, and eventually took refuge with his grandparents in Chimbote. He submits that on December 23, 1995, some soldiers interrogated and beat his grandfather. This incident convinced him to leave the country.
[7] The applicant says he went to Equator in 1996, then went on to Guatemala and Mexico, where he met his wife. On February 5, 1996, the applicant and his wife arrived in the United States. On February 13, 1996, they arrived in Canada.
[8] The panel concluded that the applicant is not a Convention refugee, partly because of certain improbabilities and partly because he had not discharged his burden of proof.
[9] The applicant submits that the panel erred in drawing conclusions of non-credibility, and that it did not consider the evidence as a whole.
[10] He further asserts that the panel expressed an opinion and a "[Translation ] speculative hypothesis" in stating that the army would surely have closed down the radio station after the initial attacks against it and not only after some years.
[11] He alleges that the panel"s findings of non-credibility are based on events occurring between 1988 and 1991 and are of no consequence concerning the events underlying his fear of persecution, which occurred in 1995.
[12] The respondent submits that the panel was justified in rejecting the applicant"s claim owing to the various improbabilities in the applicant"s story, as it had concluded after a detailed analysis of the evidence that he had not succeeded in meeting his burden of proof.
[13] The respondent argues that the panel is in a better position than anyone to evaluate the witnesses, and submits that the Court"s intervention is limited to those cases in which the Refugee Division based its decision on findings of fact that it made in a perverse or capricious manner or without regard for the evidence: Kumar v. M.E.I. , A-1294-91, Aguebor v. M.E.I. (1993), 160 N.R. 315. The respondent claims that the panel uses logic and common sense in determining the credibility of testimony.
[14] The respondent also argues that the panel has no obligation to confront a claimant with evidence or items that affect his or her credibility. In reply to the applicant"s allegations that the panel issued an unfounded opinion, the respondent explains that the panel did not arbitrarily admit some facts or an opinion but simply assessed the plausibility of the applicant"s story.
[15] In regard to the applicant"s membership in the Aprista party and the assistance requested from that party, the respondent submits that it is the claimant"s responsibility to prove a fear of persecution. He cannot criticize the panel, therefore, for not having asked him certain questions concerning the assistance requested from the Aprista party. It should be noted that the applicant had an opportunity to mention the assistance or protection requested of the Aprista party in question 37 of his Personal Information Form, but did not do so. The respondent submits that the lack of evidence on this aspect cannot be attributed to anyone but the applicant and that consequently the panel was justified in considering it implausible that he did not attempt to solicit help from his party.
[16] Finally, the respondent recalls the presumption in the cases that the panel is presumed to have considered all of the evidence before rendering its decision. In the absence of credible testimony, a refugee claim cannot be granted solely on the basis of documentary evidence.
[17] The panel held that the evidence submitted by the applicant was insufficient to establish that he has a well-founded fear of persecution. Several improbabilities were detected in the testimony before the panel. For example, the panel submits that it is improbable that the applicant, who had allegedly been held for a week in 1988 owing to his activities, would be hired by the same government to work in a region that was under surveillance by the guerrillas. Furthermore, according to the panel, it is unlikely that the applicant could with impunity denounce abuses by the army in his radio broadcast beginning in 1990, and that the army did not react until 1995. In this regard, the panel stated: "[Translation ] Surely the army would have shut down the radio station with the first attacks on them, and not only after some years." Finally, the panel concluded that the applicant had not solicited the assistance of the Aprista party, to which he still belonged. It is an official party that has elected eight members of parliament who can carry out their duties without hindrance.
[18] In the first place, because the Refugee Division is in the best position to assess the evidence, this Court should intervene only if it is convinced that the findings as to credibility and implausibility are not based on any evidence: Whaide v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1617.
[19] In Akinhole v. Canada, [1997] F.C.J. No. 296, the Court stated:
| Thus, the panel may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence or it is found to be implausible. ... In short, its decision must be found to be patently unreasonable on the basis of the evidence before the panel. |
[20] Décary J.A. set out the standard of judicial review in this regard in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732:
| 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? |
[21] The applicant alleges that the panel had no authority to issue the following opinion: "[Translation ] ... surely the army would have shut down the radio station with the first attacks on them, and not only after some years", and that there was no basis for finding that he had not solicited help from his party since no question was put to him in this regard. But in the Personal Information Form, question 37 specifically refers to requested assistance or protection. The applicant did not answer this question and did not refer to this matter in his testimony. Is it necessary to recall that the onus is on the applicant to establish his fear of persecution. In the case at bar, the panel"s findings in relation to these allegations are not unreasonable.
[22] The applicant alleges that the panel did not base its decision on the record as a whole. This is a very important issue, since a panel has an obligation to consider the entire record before reaching a conclusion. In Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598, Hugessen J.A. wrote:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless that contrary is shown. As the tribunal"s findings are supported by the evidence, the appeal will be dismissed. |
[23] In Khan v. Canada (M.E.I.), [1999] F.C.J. No. 332, Teitelbaum J. stated:
| In the present case, the Board"s reasons state that Mr. Khan"s testimony and "other evidence were considered". There is no other reference in the decision to the documentary evidence. The Board failed to say that the applicant submitted documents to be considered for his claim. In my view, the Board"s failure to discuss or refer to the documents in their decision which in part support the applicant"s claim which was dismissed for lack of credibility amounts to a reviewable error. Had the evidence been considered, the result may have been different. |
[24] In the case at bar, the panel listed the evidence in the record in its decision. After a detailed assessment of the evidence, the panel concluded that this evidence was insufficient to establish that the claimant has a well-founded fear of persecution. Although the panel, in its decision, refers to only one item of evidence, exhibit A-3, it should be noted that the claimant"s lack of credibility, having regard to the fundamental components of his account, amounts to a finding that there is no documentary evidence in support of his claim: Sheikh v. Canada (M.E.I.) , [1990] 3 F.C. 238, Ockana-Owani v. Canada (M.E.I.), [1999] F.C.J. No. 1490. In Djouadou v. Canada (M.C.I.), [1999] F.C.J. No. 1568, the Court stated:
| With respect to the applicant"s argument that the panel did not consider the documentary evidence concerning Algeria, I am of the view that insofar as the applicant"s testimony was found not to be credible, such an assessment was not required. |
[25] The panel"s decision is reasonable and does not warrant the intervention of this Court. Consequently, the application for judicial review is dismissed.
| J. |
OTTAWA, Ontario
January 11, 2000
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-2021-99 |
| STYLE: GODOFREDO NESTO SANCHEZ SALGADO |
v.
MCI
| PLACE OF HEARING: OTTAWA, ONTARIO |
| DATE OF HEARING: DECEMBER 7, 1999 |
REASONS FOR ORDER OF ROULEAU J.
DATED: JANUARY 11, 2000
APPEARANCES:
RENÉ LABROSSE FOR THE APPLICANT
PATRICIA DesLAURIERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL Le BRUN FOR THE APPLICANT
PATRICIA DesLAURIERS
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA