IMM-2917-96
OTTAWA, ONTARIO, this 30th day of June 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
MANUELA VERGARA,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The application for judicial review of the decision of the Refugee Division dated August 5, 1996, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
IMM-2917-96
BETWEEN
MANUELA VERGARA,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision of the Refugee Division dated August 5, 1996, determining that the applicant is not a Convention refugee. The applicant is a national of Chile who based her claim on the grounds of political opinion and membership in a particular social group.
The Refugee Division preferred the documentary evidence indicating that [translation] "fundamental and lasting changes have occurred in Chile since 1989" to the testimony of the applicant. The tribunal based its decision on evidence indicating that the social and political situation has been normalized in Chile, to the point that the U.N. High Commission for Refugees and the Office français de protection des réfugiés et apatrides no longer recognize Chilean refugees. The tribunal stated that it is [translation] "aware that there is some degree of tension in the country because part of the population would like to shed full light on the crimes committed under the Pinochet regime while the other part would like to grant pardon", but nonetheless found that the [translation] "fundamental and lasting changes that have occurred in Chile" made the applicant's account implausible.
Essentially, the applicant alleges that the tribunal based its rejection of her testimony, which was not otherwise contradicted, on a superficial and selective analysis of the documentary evidence. In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, Mr. Justice Décary, writing for the Federal Court of Appeal, described the restraint that must be applied in respect of a finding of credibility by this sort of tribunal, at page 316:
| 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 better than the Refugee Division is in a position to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
In M.E.I. v. Zhou (July 18, 1994), A-492-91, Mr. Justice Linden, writing for the Federal Court of Appeal, confirmed that it is open to the tribunal to place greater weight on the documentary evidence submitted than on the applicant's testimony:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
Mr. Justice Noël, of this Court, has written two decisions to the same effect, in Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, and Andrade et al. v. M.C.I. (May 5, 1997), IMM-2361-96, the latter decision being quite recent. In Victorov, the Court observed:
| I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. |
In Andrade, in which both applicants were citizens of Chile, Mr. Justice Noël wrote:
| The applicants have not questioned the facts as recounted by the tribunal. However, they contend that the tribunal rejected their claims on the sole basis of the documentary evidence. According to the applicants, the tribunal should have accepted the uncontradicted testimony of the principal applicant. |
| I am not of this opinion. The tribunal's decision is not based solely on the documentary evidence. It was the events recounted by the principal applicant, when considered having regard to the documentary evidence, that led the tribunal to conclude that his account was implausible. After considering the testimony of the principal applicant, I conclude that the tribunal was entitled to draw that conclusion. |
| The applicants also contend that the tribunal ignored the documentary evidence that could have confirmed the events they stated they had experienced. I am rather of the view that the tribunal responded to the invitation extended to them by the officer responsible for verification to assess the logic of the principal claimant's account in light of the conditions suggested by the weight of the documentary evidence. There is nothing to suggest that in so doing the tribunal did not lend an attentive ear to all the evidence that was before it. |
In the instant case, I am of the opinion that the applicant has not discharged her burden of showing that the inferences drawn by the Refugee Division, which is a specialized tribunal, could not reasonably have been drawn. It appears from the evidence as a whole, including the transcript of the hearing before the tribunal, that it based its decision on significant evidence in the record and that it could therefore have reasonably concluded as it did. Although the documentary evidence on Chile, as a whole, does not always portray as "rosy" a situation as the one described in the tribunal's decision, nonetheless the facts set out in that evidence are sufficiently serious to support that decision. It is well known that in the area of credibility and assessment of the facts, it is not up to this Court to substitute itself for a tribunal where, as in the instant case, the applicant fails to show that the tribunal made a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Accordingly, since the applicant has not satisfied me that the tribunal committed such an error as would warrant the intervention of this Court, the application for judicial review must be dismissed.
Counsel for the applicant submitted the following question for certification under section 83 of the Immigration Act:
[translation]
| To what extent does the Refugee Division commit a reviewable error of fact or of law by rejecting the claimant's testimony on the basis of the documentary evidence as a whole where the administrative tribunal fails to state reasons in its decision why it placed no weight on the documentary evidence submitted by the claimant? |
Having regard to the decisions of the Federal Court of Appeal in Mehterian v. M.E.I. (June 17, 1992), A-717-90, and of the Trial Division of this Court in Kanagaratnam v. Canada (M.E.I.), 28 Imm. L.R. (2d) 44, and Singh v. M.C.I. (June 23, 1995), IMM-4256-94, I do not believe that this question should be certified. Accordingly, there is no question here to be certified.
OTTAWA, Ontario
June 30, 1997
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2917-96
STYLE OF CAUSE: MANUELA VERGARA v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: JUNE 14, 1997
REASONS FOR ORDER OF PINARD J.
DATED: JUNE 30, 1997
APPEARANCES:
ALAIN JOFFE FOR THE APPLICANT
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
NADLER, JOFFE FOR THE APPLICANT
MONTRÉAL
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA