OTTAWA, Ontario, this 14th day of October, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of the decision of the Immigration and Refugee Board (refugee Division) dated March 2, 2005, concerning Yrais Del Carmen Silva Ramirez ("the Applicant").
[2] The Applicant is a 38-year old citizen of Venezuela. She arrived in Canada on May 29, 2003. The Applicant claims refugee protection as a Convention refugee for reasons of Imputed Political Opinion, for a risk to life and a risk of cruel and unusual punishment or punishment/danger of torture.
[3] The Applicant states that she was born and raised in Valencia, Venezuela, which is a town close to the Columbian border. In August 1999, the Applicant became romantically involved with Angel Hernandez, a citizen of Columbia. She states that she moved in with Mr. Hernandez, her common-law partner, in Cucuta, Columbia, where she lived and worked illegally for three years.
[4] The Applicant further states that on April 25, 2003, while traveling to Tibu norte del Santander, Columbia, she and her partner were accosted by members of the armed revolutionary forces of Columbia (FARC). She alleges that upon learning that she is a dentist the FARC members detained her, forced her into a van, and drove her to a guerrilla camp.
[5] The Applicant says that the next day she was required to do dental work. On the third day she could not do anything as she did not have any equipment, and was able to leave camp. The Applicant says that she was given four days to return. The Applicant went to her sister's home in Valencia.
[6] The Applicant states that on May 6th, 2003 she received a call from her common-law spouse in Colombia. He told her that the FARC was looking for her. The Applicant says that two days later four men came to her mother's house while the Applicant was there. There is a factual dispute discussed below as to what occurred at this point, but both parties agree that the men left when no-one answered their knocks at the door.
[7] The Applicant says that fearing for her life she moved to Caracas. She was advised to leave the country. She went into the United States on May 21, 2003. On May 29th, 2003 she made her way to Canada where she made the present refugee application.
[8] The panel of the Immigration and Refugee Board found that the claimant was not a Convention refugee or a person in need of protection for risk to life or a risk of cruel and unusual treatment or punishment/danger of torture. The Board determined that the Applicant had not provided credible or trustworthy evidence.
[9] The Board made the following findings:
- Based on the Applicant's Venezuelan passport, the Applicant is a citizen of Venezuela, and has no legal status in any other country.
- There was no travel registered between Columbia and Venezuela on the Applicant's passport, although the Applicant says she moved to Columbia to work and live with her common-law spouse. At the Port of Entry, the Applicant claimed that she never had to use a passport. The panel doubted this, and found that this statement casts doubt on the credibility of all the claimant's allegations.
- The Applicant was inconsistent in relating the alleged visit by FARC to her mother's home on May 8th, 2004, and this inconsistency goes to the credibility and believability of the Applicant. In her Personal Information Form, the Applicant claimed that the men threatened that they would kill both her and her family if she did not collaborate with them. They also told the Applicant that she got herself in trouble with FARC and owed them money. In her testimony, the Applicant claims that she and her mother did not answer the men's loud knocking, and that the men went away.
- Although the Applicant alleged that there are close connections between the FARC and the current ruling Venezuelan government, there is no indication that FARC operates in Venezuela, or that citizens of Venezuela would not be protected by their authorities from the FARC.
- The only evidence in support of such close connections between the FARC and Venezuela was an article from the Economist dated October 6, 2003.
- The Applicant filed a police report, but the Applicant did not follow up on the complaint. Instead, she left the country within a short period of time.
- The Applicant had an internal flight alternative (IFA). She could have relocated to Caracas.
[10] It should be noted that the Board's record refers to an article from The Economist (at page 4 of the Board's reasons), but that no such article appears to be included within the Tribunal's record. The only newspaper article in the file is from the U.S. News & World Report, and that it was introduced at the hearing (Affidavit of Dominique Toillon, sworn August 23rd, 2005).
[11] The Applicant requests that the decision of the Board be quashed. In parts of the Applicant's Memorandum of Arguments, the Applicants' submissions that were dismissed by the Board are simply reiterated without contesting the Board's findings on any factual or legal ground. However, the Applicant also makes three submissions:
Incorrect Chronology
[12] The Board's multiple errors of fact with respect to the dates of events are flagrant errors of fact. The Applicant submits that the Board erred in fact by finding that the Applicant went to the United States on May 29, 2004, and then went to Canada May 21, 2004. The Applicant submits that the years should have been 2003, and that the Board has developed an impossible chronological order of events. The Applicant also submits that the Board erred in fact by finding that the Applicant referred to the alleged visit to her mother's house occurred on May 8, 2004, when the Applicant alleges that it occurred on May 12, 2003 or May 18, 2004.
Credibility Findings
[13] The Applicant submits that the Board's findings with respect to the Applicant's credibility are premised on an unduly restrictive margin of appreciation of perceived flaws in an Applicant's testimony. The Applicant submits that a reasonable margin of appreciation should be applied to any perceived flaws in an Applicant's testimony (Benjamin Attakora v. Minister of Employment and Immigration, Federal Court of Appeal Decision A-1091-87, May 19, 1989). The Applicant argues that while she did not add the details of the death threats to her and her family or of the men's claim that the Applicant owed money to the FARC in oral testimony, this did not contradict her earlier account of the incident. The omission of detail in the oral narrative did not mean that her two narratives were in basic contradiction or inconsistent.
State Protection and Internal Flight Alternative
[14] The Applicant again stresses that there was no internal flight alternative available to her in the circumstances because the FARC could find her anywhere in Venezuela.
[15] The Applicant submits that these flagrant errors of fact committed by the Board demonstrate that the Board did not display a proper regard for the evidence before it and that there was a clear misunderstanding of the facts.
[16] The Minister of Citizenship and Immigration ("MCI") submits that the Board's decision should be upheld. The Respondent makes three submission:
Chronology
[17] The Respondent submits that the incorrect dates are clerical errors that are inconsequential in that they did not impact on the logic of the reasons given by the tribunal.
[18] The Respondent submits that all incorrect references to 2004 rather than 2003 are mere clerical errors. It further submits that the Board's references to the days of the month of key dates are either correct, or that the errors are simply clerical errors that again do not impact the logic of the reasons given by the Board.
[19] The Applicant alleged that the incident at her mother's house occurred on May 12, 2003. The Board referred to the incident as occurring on May 8. The Respondent notes that in the original Personal Information Form the original May 12 date was changed to May 8th, and submits that the May 8 date is correct.
[20] The Respondent further submits that similar inconsistencies regarding the Applicant's date that she left Venezuela can be reconciled upon examining the Applicant's Personal Information Form. The Applicant notes that the Board's reasons indicate that the Applicant left Venezuela May 29th, 2004. According to the Personal Information Form the Applicant left Venezuela May 21st, 2003, and arrived in Canada May 29. In the Applicant's Personal Information Form the Applicant states that she "fled to the United States and immediately came to Canada on May 29th". The Personal Information Form narrative explains any chronological inconsistencies. The Respondent submits that any chronological mistakes are mere clerical errors.
Credibility Findings
[21] The Respondent notes that the Board's finding of doubt regarding the Applicant's story that she never had to use a passport when traveling between Columbia and Venezuela is not discussed in the Applicant's memorandum or affidavit. The Respondent submits that this finding should therefore be deemed admitted as it is not specifically challenged by the Applicant.
[22] The Respondent also argues that the two narratives regarding the visit by four men to the Applicant's mother's house are clearly inconsistent. In one narrative the men left after knocking, while in the other the men uttered threats to the Applicant and her family.
State Protection and Internal Flight Alternative
[23] The Respondent contends that the evidence adduced by the Applicant does not show that the Venezuelan authorities would not protect its citizens in circumstances such as those of the Applicant. The Respondent notes that the authorities were given little time to react as the Applicant left the country within the same month of requesting that a report be filed.
[24] The asylum claimant must reverse the presumption that a state can afford protection to its citizens (Mendivil v. Canada (Secretary of State) (1994) 167 N.R. 91 (F.C.A.) at page 95). The Applicant has failed to reverse this presumption in this case.
[25] The Respondent further submits that the Applicant has failed to present any evidence that would support her belief that the FARC could find her anywhere in Venezuela. The Respondent submits that the Applicant has failed to demonstrate that she would face a well-founded fear of persecution should she live in Caracas. Since an asylum claimant must demonstrate the presence of a well-founded fear of persecution throughout her country of nationality, and the Applicant has failed to do so in this case, asylum cannot be granted to the Applicant (Thirunavukkarasu v. M.E.I., [1991] 1 F.C. 589 at page 594; Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (F.C.); Joginder Singh v. M.C.I. (November 18, 1996) IMM-357-96 (F.C.) at page 7 of the Respondent's Memorandum of Argument).
[26] The above issues are each examined in turn. The Court will also examine whether the Tribunal's reference to an article by The Economist amounts to a reviewable error.
Chronology
[27] The Board clearly made errors with respect to the year of certain events. Certain misunderstandings regarding the days on which certain incidents occurred can be reconciled by reference to the Applicant's Personal Information Form; however, the years of these dates remain incorrect. Nevertheless, these errors are not flagrant errors of fact. Rather, these errors can be more properly described as clerical errors. The reasons of the Board were not impacted by these mistakes. The reasoning regarding the Applicant's credibility, as well as reasons with respect to state protection and internal flight alternative were not dependant on the dates contested by the Applicant. In my view, these clerical errors do not amount to reviewable errors.
Credibility Findings
[28] Credibility findings are evaluated on a standard of patent unreasonableness (Augebor v. Canada (MEI) (1993) F.C.J. No. 732, Pissavera v. MCI, [2000] A.C.F. no 2001 (Trial Division) (QL), Umba v. Canada (MCI), [2004] F.C.J. No. 17).
[29] As the Respondent notes, the Board's finding of doubt regarding the Applicant's story that she never had to use a passport when traveling between Columbia and Venezuela is not discussed in the Applicant's memorandum or affidavit, nor at the hearing before me. It is not specifically challenged by the Applicant. The Board found that this statement casts doubts on the credibility of all the Applicant's allegations.
[30] The credibility issues that stem from the visit by four men to the Applicant's mother's house are somewhat more complex. The Respondent argues that the two narratives regarding the incident at the Applicant's mother's house are clearly inconsistent. However, while the Applicant's two narratives of the incident are not identical, it is possible that one narrative is simply less descriptive than the other narrative. It is possible that four men arrived at the Applicant's mother's house and that while waiting for someone to open the door, the men shouted death threats and that the Applicant owed money to the FARC. It is possible that although one narrative is less vivid than the other that neither narrative contradicts the other.
[31] I am satisfied, however, that on a patent unreasonableness standard, the Board's decision regarding credibility can be upheld. The fact is that in her oral testimony the Applicant did not discuss any threats, or even suggest that the men at her mother's house had said anything. Although it is possible that this was a simple omission by the Applicant, it was within the Board's power to determine that the difference in accounts is an inconsistency that goes to the credibility of the claimant.
State Protection and Internal Flight Alternative
[32] The standard of review of reasonableness simpliciter applies to a Board's finding regarding State protection (Chavez v. Canada (M.C.I.) [2005] F.C.J. No. 232 at para. 11).
[33] In this case, it is not clear as to what evidence was presented to suggest that Venezuela is incapable of protecting the Applicant from the FARC. Although the Board makes a reference to an article in The Economist, the only article found on record was in fact a U.S. News & World Report piece entitled "Terror Close to Home" (Affidavit of Dominique Toillon). The report in U.S. News & World Report, which appears to have been the only newspaper article introduced at the hearing, alleges that the FARC have established a training base in the Perijá mountains in Venezuela. The article reports that Columbia has complained that Venezuela is supporting the FARC, but Venezuela denies the allegation. The article does not suggest that individual Venezuelans targeted by the FARC within Venezuela cannot be protected by the state. The Applicant has not presented the testimony of similarly situated individuals, or presented evidence that would reverse the presumption that Venezuela is capable of protecting the Applicant from the FARC.
[34] The standard of review of patent unreasonableness applies to a Board's finding with respect to Internal Flight Alternative (IFA) (Chorny v. Canada (M.C.I.), [2003] F.C.J. No. 1263 (F.C.T.D.) at para. 11). The Applicant has not demonstrated that she would face a well-founded fear of persecution should she live in Caracas. The Applicant has failed to provide evidence to substantiate her assertion that the FARC would be able to locate her anywhere in Venezuela. Even assuming the U.S. News & World Report allegations that a FARC base is located in Venezuela, it does not follow that the FARC would be able to locate the Applicant in Caracas.
References to The Economist
[35] It is surprising that the Board refers to an article in The Economist in its reasons, when no article from The Economist appears to have been introduced at the hearing.
[36] It is possible that the Board mistook the U.S. News & World Report article as being an article from The Economist. As the Board refers to The Economist as "the only evidence... that makes allusions to allegations of close contact between the present Venezuelan government and the FARC" (Board's decision, page 4), and the U.S. News & World Report article makes this allegation, such a mistake seems likely. If this is the case, then the mistake can be considered a clerical error that did not impact on the Board's reasons.
[37] It appears that by the number of errors made by the Board member in writing his decision, he did not pay particular attention to what he was doing. Notwithstanding this problem, I am satisfied that the crucial finding of the Board is correct.
ORDER
The application for judicial review is denied. No question for certification was submitted.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2021-05
STYLE OF CAUSE: Yrais Del Carmen Silva Ramirez v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 7, 2005
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
Mr. Jeffrey Platt FOR APPLICANT
Ms. Gretchen Timmins FOR RESPONDENT
SOLICITORS OF RECORD:
Montreal, Quebec
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT