Date: 20050117
Docket: IMM-3833-04
Citation: 2005 FC 59
Québec, Quebec, January 17, 2005
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
MARIA CRISTINA PASCUCCI
Applicant
- 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 Immigration and Refugee Board, Refugee Protection Division (the panel) dated March 30, 2004, to the effect that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The findings of the panel are essentially factual. The panel determined that the applicant was not credible. The decision must be read as a whole. Only the panel can determine the probative value to assign to each piece of evidence. In this case, it is obvious that the panel simply did not believe the applicant's story. Specifically, it is clear from the reasons of the decision that the panel dismissed the applicant's allegation to the effect that she had been threatened by police officers.
[3] The panel was not satisfied with the applicant's explanation about the existence of significant omissions in her Personal Information Form regarding the supposed identities of the persons who had allegedly threatened her. Yet these were fundamental elements of the applicant's claim and application for protection. The panel also determined that the applicant did not have any subjective fear of persecution and that her application for protection was attributable rather to the fact that her marriage to a Canadian citizen had ended unfortunately and prematurely.
[4] The correctness of the general findings of the panel were not materially attacked by the applicant and, as a whole, the panel's decision in my opinion is not patently unreasonable.
[5] The panel's failure to address the fact that the applicant had taught English to Judge Bardone, who investigated police corruption in Argentina, is insufficient to set aside the panel's decision. It was not until she was confronted with the fact that she did not have any particular or significant involvement in the rallies and demonstrations that the applicant referred to these lessons that she gave to the judge. Further, all of the circumstances in the record, including the applicant's profile, her activities and the other circumstances, made her story implausible and did not suggest that she could have been targeted by the police. The preponderance of the probabilities favoured the version to the effect that the applicant came to Canada for the sole purpose of marrying her husband, who had to sponsor her.
[6] On the other hand, the fact that the panel could have erred regarding the date that the applicant had received her passport does not affect the validity of the panel's general determination, which is not solely based on the lateness of the claim, but on the applicant's general lack of credibility.
[7] Finally, the applicant did not establish that her former counsel had been incompetent or that the omissions alleged caused her serious prejudice. The failure to file unidentified documents and the absence of questions by the former counsel at the hearing were clearly strategic choices. The same can be said of the decision by the applicant, who was teaching English, to proceed in English. Such elements, even if they are established, cannot be raised later on as a basis for an application for judicial review. As stated above, the panel's determination was based on the applicant's lack of credibility. This is not one of those cases where there are exceptional circumstances involved and where it would be possible to find a legal error resulting from the serious prejudice caused by incompetent counsel.
[8] No question of general importance was proposed and none will be certified by the Court.
ORDER
THE COURT ORDERS:
The application for judicial review is dismissed.
Luc Martineau
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3833-04
STYLE OF CAUSE: MARIA CRISTINA PASCUCCI and MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Québec
DATE OF HEARING: January 17, 2005
REASONS: The Honourable Mr. Justice Martineau
DATE OF REASONS: January 17, 2005
APPEARANCES:
Jean-Philippe Trudel FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Philippe Trudel
Québec, Quebec FOR THE APPLICANT
Department of Justice Canada FOR THE RESPONDENT
Montréal, Quebec