Federal Court Decisions

Date: 20020430

Docket: IMM-998-01

Neutral citation: 2002 FCT 497

Ottawa, Ontario, this 30th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                   GUILLERMO FREDY VELA HUMANCHUMO, and

CARMEN ROSA PASCUAL VALVERDE

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 , of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 15, 2001 (reasons signed January 23, 2001), wherein the Board determined that the applicants were not Convention refugees.

[2]                 The applicants seek an order setting aside the decision of the Board, referring the matter back for reconsideration by a differently constituted panel of the Board.

Background

[3]                 The applicants, Guillermo Fredy Vela Humanchumo ("Mr. Humanchumo") and Carmen Rosa Pascual Valverde ("Ms. Valverde") are common law spouses and are citizens of Peru.

[4]                 The applicants applied for Convention refugee status. The basis for the applicants' claim is as follows. The applicants fled Peru because they were targeted by the Sendero Luminoso ("Shining Path") guerrilla group. In 1994, Mr. Humanchumo received threatening phone calls from the Shining Path asking him to pay a war tax, which he refused to do. On November 26, 1994, Mr. Humanchumo was shot in his right leg by the Shining Path when he was attending a family gathering. The applicants received further threatening telephone calls in late 1999. On December 22, 1999, five armed members of the Shining Path entered the applicants' business demanding payment of the war tax, failing which the applicants would be killed. The applicants refused to pay the war tax. The applicants left Peru for the United States on December 30, 1999. The applicants arrived in Canada, from the United States, on February 24, 2000.

[5]                 The hearing of the Board was held on December 5, 2000. The reasons of the Board were signed on January 23, 2001 and the amended notice of decision was issued on February 15, 2001. The Board determined that the applicants were not Convention refugees. This is the judicial review of the Board's decision.

Applicants' Submission

[6]                 The applicants submit that the Board made serious errors in assessing the evidence before it, casting into doubt the finding on credibility and colouring the whole decision with an air of incredulity.

[7]                 The applicants submit that many apparent contradictions could have been dealt with at the hearing if the applicants were questioned on those points.

[8]                 The applicants submit that although the Board does not expressly make a finding that the applicants lacked credibility, it is not unreasonable to infer that the Board acted according to a belief that the applicants were not credible.

[9]                 The applicants submit that a finding of lack of credibility must be on the basis of real contradictions or discrepancies (see Lai v. Canada (M.E.I.) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)). The applicants submit that the contradictions and discrepancies identified by the Board are not real.

[10]            The applicants submit that there is a presumption that when a claimant swears certain facts ar true, they are true, unless there is a valid reason to doubt their truthfulness (see Maldonado v. Canada (M.E.I.) [1980] 2 F.C. 302 (FCA)).

[11]            The applicants submit that the Board should afford the applicants an opportunity to clarify the evidence and explain apparent contradictions and discrepancies (see Gracielome v. Canada (M.E.I) (1989), 9 Imm. L.R. (2d) 237 (FCA)). The Board clearly states that the applicants were not provided an opportunity to clarify these apparent contradictions.

[12]            The applicants attached a variety of documentary evidence to the affidavit of Mr. Humanchumo to support the proposition that there is no internal flight alternative ("IFA") within Peru that is available to the applicants.

[13]            The applicants submit that at a new hearing in which their counsel is not somewhat impaired, counsel will be able to fully argue the issue of the nature of political activity and Mr. Humanchumo's beliefs, strengthening the applicants' case.

Respondent's Submissions

[14]            The respondent submits that the applicants are not permitted to introduce new evidence in this judicial review proceeding that was not before the Board when it made its decision. In particular, the respondent objects to the admission of exhibits B, D, F, I, J, N and O of the affidavit of Mr. Humanchumo. The respondent submits that new evidence is only admissible in a judicial review when there is a jurisdictional error and is not appropriate in this proceeding.

[15]            The respondent submits that the Board did not doubt the existence of the Mr. Humanchumo's bullet wound.

[16]            The respondent submits that the assessment of evidence is clearly within the Board's mandate and expertise, and should only be overturned if it is wrong on its face such that it is patently unreasonable.

[17]            The respondent submits that the Board is entitled to make reasonable findings based on implausibilities, common sense, and rationality.

[18]            The respondent submits that it is proper and reasonable for a Board to deny a claim for Convention refugee status on the basis of contradictions and inconsistencies in a claimant's story or on the basis that it is simply implausible. The respondent cites the following quotation from Tahir v. Minister of Citizenship and Immigration (1998) 47 Imm. L.R. (2d) 112 (FCTD):

. . . This Court is ill-placed to attempt to second guess the Board in that function unless, as I say, it can be shown that the Board has gone beyond the limits of what is reasonable or has based itself on material which was not properly before it or otherwise upon irrelevant consideration.

[19]            The respondent submits that a finding of fact is only reviewable if it is truly erroneous, or was made capriciously or without regard to the evidence, and if the decision being challenged was based on the erroneous finding (see Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (FCA)). The respondent submits that none of these three conditions precedent have been met.

[20]            The respondent submits that the Board reasonably found it implausible that the applicants frequently vacationed in the United States but did not claim refugee status there.

[21]            The respondent submits that having found the applicant's evidence to be implausible, there was no further basis upon which the Board could have found the applicants to be refugees.

[22]            The respondent submits that the Board's inferences and conclusions were reasonably open to it on the record, and the applicants have failed to satisfy their onus to demonstrate that no reasonable person could, from the evidence before the Board, have arrived at the same conclusions.

[23]            The respondent submits that the applicants have not met the requirements to be Convention refugees.

[24]            Issues

1.          Did the Board commit a reviewable error in assessing contradictions and discrepancies between the oral testimony and the documentary evidence, without providing an opportunity to clarify the apparent differences?

2.          Should the decision be set aside in light of the Board's finding that an internal flight alternative is available to the applicants?

Relevant Statutory Provisions, Regulations and Rules

[25]            The Immigration Act, R.S.C. 1985, c. I-2, as amended, defines a Convention refugee as follows:

"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;

Analysis and Decision

[26]            Issue 1

Did the Board commit a reviewable error in assessing contradictions and discrepancies between the oral testimony and the documentary evidence, without providing an opportunity to clarify the apparent differences?

The decision of the Board notes a variety of apparent discrepancies between the applicants' testimony and the documentation they had submitted. I will proceed to address the Board's finding with respect to many of the apparent discrepancies and whether they give rise to a reviewable error.

[27]            Graduation date

Under the heading "The Evidence", the Board wrote:

The male claimant graduated in accounting in 1989 according to his testimony but in 1987 according to his PIF. He stated that he had been working as an accountant when he decided to start a food distribution business in 1992 when he was approximately 23 years of age. According to the PIF, the business started in 1990. The claimant was not questioned about these discrepancies.

The Board recognized that the Mr. Humanchumo was not questioned on that point but nevertheless, appears to have relied on the apparent discrepancy, at least in part, in reaching the decision.

[28]            I was not directed to the portion of the testimony that contained the discrepancy with respect to the graduation date and on my review of the transcript, I cannot find where the applicant, Mr. Humanchumo testified that he graduated in 1989. I am of the view that the lack of such a statement in the transcript would make it appear that the Board's decision on this point, is without regard to the evidence before it.

[29]            "Business Man"

The Board further wrote:

Following this misadventure, the claimant decided to close his business and to go back to university to study social anthropology (May 1995 to August 1997), according to answer 17 on his PIF. In 1995 he decided to start another business in the same field. It should be noted that, according to answer 18 on the PIF, the claimant was a "business man" from January 1990 to December 1994 at Divisa/Prodasa, Trujillo-La Libertad, then from January 1995 to June 1997 at Prodasa, Chimbote-Ancash, and finally from July 1997 to December 1999 at Veinsa/Allprop/Paijan, Trujillo-La Liberad. According to this information, he had not experienced any interruption in his career as a business man. The claimant was not questioned concerning this point.

Again the Board recognized that Mr. Humanchumo was not questioned on that point but nevertheless, appears to have relied on the apparent discrepancy, at least in part, in reaching the decision.

[30]            The applicants should have been given an opportunity by the Board to explain the alleged contradictions (see Gracielome v. Canada (Minister of Employment and Immigration) (1989) 9 Imm. L.R. (2d) 237 (F.C.A.)).

[31]            Date of Police Denunciation

The Board wrote:

On December 22, 1999, five armed individuals reportedly showed up at the business asking for payment of the war tax, failing which they would be killed. The individuals fled with some cellular telephones and the money from the cash. The following day, the male claimant went to give a deposition to the police. The officers apparently told him they would not be able to provide him with constant protection. The armed individuals had reportedly burst into the store on December 22 and the claimant testified he had not gone to the police until the following day. However, the denunciation is dated December 22, 1999. The claimants were not questioned about this difference between the testimony and the document.

[32]            The certified copy of the denunciation from the national police of Peru states in part:

DENUNCIATION NO.328 - December 22, 1999 at 17:40- Offence Against Life, Body and Health, Assault and Armed Robbery and Against Personal Life.-On December 23, 1999 at 10:30 Mr. Guillermo Fredy VELA HUMANCHUMO, 32 years of age, born in Chimbote, a businessman, with an Electoral I.D. No. 32907130, with address at Pasaje Chocope No. 342 Pijan, Trujillo was here to denounce the following: at approximately 17:40 on December 22, 1999 five armed persons (four males and a female) wearing back [sic] ski masks, violently entered his business premises . . . [emphasis added]

[33]            The Board made an error in finding that the denunciation was dated December 22, 1999. The denunciation clearly states that Mr. Humanchumo was at the police station on December 23, 1999 and reported the incident of the previous day. This is entirely consistent with his testimony. The Board erred without regard for the evidence before it finding that there was a difference between the testimony and the document.

[34]            I am of the opinion that these findings of the Board with respect to the police denunciation and the graduation date are patently unreasonable. Also, the applicants were not given an opportunity to offer explanations for any of the errors. If the respondent is not successful on Issue 2, then these errors are sufficient to cause me to allow the application for judicial review.

[35]            Issue 2

Should the decision be set aside in light of the Board's finding that an internal flight alternative is available to the applicants?

If a valid IFA exists for the applicants within Peru, then the applicants cannot qualify as Convention refugees.

[36]            The applicants have attempted to enter evidence (to support the proposition that an IFA does not exist) in this judicial review proceeding that appears not to have been before the Board. The respondent objected to the admission of this new evidence. The Court must consider the Board's decision on the basis of evidence that was before the Board. As this judicial review is not an appeal or an opportunity to rehear the case on its merits, I agree with the respondent that new evidence is not relevant in determining whether the decision of the Board should be set aside.

[37]            The decision indicates that the Board found the existence of an IFA as a supplemental ground for denying the applicants' claim. The Board wrote:

After having carefully examined all of the testimony and documentary evidence, I have reached the conclusion that the evidence did not demonstrate that there was a connection with any of the reasons under the Convention. And even if there had been, the claimants could have gone to another area of Peru to live.

[38]            The Board again states the conclusion on the IFA in a subsequent portion of the decision in the following manner:

In light of this statement, and even though the claim had a nexus with the Convention, the panel considers that the claimants could have gone to another location in Peru before requesting international protection.

[39]            I note that the first part of the above sentence appears to contradict the earlier statement about whether a nexus or connection to the Convention exists for the applicants' claim. In any event, the Board was internally consistent in concluding that an IFA exists.

[40]            The documentation that the Board was referring to when it stated, "In light of this statement," appears to have been the following:

The documentation discusses measures taken by the Peruvian government to put an end to the activities of the Shining Path. The 1999 Country Reports on Human Rights Practices reads as follows:

In response to terrorism in the 1980's and early 1990's, many communities organized self-defense committees. Terrorism is no longer a serious threat in most areas and self-defense committees seek to deter crime . . .

The Constitution provides for the right of free movement; however, this right is suspended in the emergency zones, which cover about 6 percent of the country's territory and where security forces may detain travellers at any time.

[41]            I am not satisfied that this documentation, on its own, establishes that the applicants have an IFA in Peru. When you consider the generality of this document and the errors in the assessment of the remainder of the evidence, I am of the view that the question of whether or not the applicants have an IFA in Peru should be considered by another panel of the Board.

[42]            Accordingly, I would allow the application for judicial review and direct that the matter be remitted to a different panel of the Board for redetermination.

[43]            Neither party wished to submit a serious question of general importance for certification.

ORDER

[44]            IT IS ORDERED that the application for judicial review is allowed and the matter is remitted to a different panel of the Board for redetermination.

                                                         "John A. O'Keefe"             

                                                                            J.F.C.C.                      

Ottawa, Ontario

April 30, 2002