BETWEEN:
HAMAYA MERCEDES FIDELA PAREDES ALONSO
(a.k.a. HAMAYA MERCEDES PAREDES ALONSO)
FABIANA ZAVALAGA PAREDES
NICOLAS ZAVALAGA PAREDES
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated October 17, 2005, wherein the Board found that the applicants are not "Convention refugees" or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Hamaya Mercedes Fidela Paredes Alonso (the principal applicant) and her children (the applicants) made a refugee claim along with the principal applicant's husband, and children's father, Mr. Zavalaga. They are all citizens of Peru. After the hearing, but before the decision was rendered, Mr. Zavalaga withdrew his claim in order to take a job with the United Nations mission in the Democratic Republic of the Congo. His wife and children did not withdraw their claims.
[3] The Board reviewed all of the evidence before it and concluded that it did not support the objective and subjective elements of the applicants' claim for protection.
Plausibility Findings
[4] Based on its review of the evidence, the Board concluded that anyone suspected of being associated with the Shining Path terrorists would be monitored very closely and that a reasonable action for an intelligence officer would have been to check the passports and take appropriate action. The Board therefore found it implausible that the applicant and her husband were able to retain and/or renew their passports, and have certificates issued to them, if they were wanted by the Intelligence Service as they alleged.
[5] Contrary to the submissions of the applicant, these findings of the Board were open to it to make on the record. The Board may draw conclusions not only concerning inconsistencies in the evidence but also on the basis of the plausibility of the evidence. The Board may make an assessment of the evidence in the context of whether it was in harmony with the preponderance of the probabilities which a person would readily recognize as reasonable in the circumstances. Further, in assessing the plausibility of an applicant's evidence, the Board may consider the applicant's story in light of extrinsic criteria such as rationality, common sense and judicial knowledge, all of which require the drawing of inferences.
[6] The Board found that it was implausible that the government of Peru would allow the applicants to leave the country if they were suspected of being linked with the Shining Path. The Board's findings are based on documentary evidence concerning the animosity between the Peruvian government and the Shining Path.
[7] In a judicial review application, the burden rests on the applicant to show that the inferences drawn by the Board could not reasonably have been drawn based upon the evidence before it (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). In my opinion, the applicant has not therefore satisfied the onus upon her to establish an issue for judicial review.
[8] While the applicants do indicate paragraphs in the documentary evidence that refer to the sinking morale and other issues in the Peruvian military, the article does not refer, at all, to the Intelligence Service or to any department of the Peruvian government. The applicant has therefore, in my opinion, not shown that the plausibility determination, that is, that the government would have monitored the applicants closely if they believed them to be connected to the Shining Path, is a patently unreasonable one.
[9] Regarding the contention of the applicants that the different government departments in Peru are not necessarily linked and do not necessarily share information, I am inclined to disagree in relation to the certificates that were issued. The departments that issued the certificates to the applicants were the Ministry of Security and Ministry of Defence. The Board found it implausible that the Intelligence Service and other departments charged with the security and defence of the nation wouldn't share information regarding a person considered to be a possible threat to all of the Government. The applicant has provided no evidence to rebut this finding. It also appears that the applicants are attempting to re-weigh the documentary evidence which is not the basis upon which this Court may intervene.
[10] The Board also noted that the applicant's husband's actions in returning to Peru and subsequently approaching the government for a passport and certificates of service indicate a lack of subjective fear. The Board stated in clear reasons that it did not accept the applicant's explanation that the Intelligence Service was not connected to these other arms of the Peruvian government. This assessment was reasonable and open to the Board to make.
[11] The applicants submit that the Board also had no basis for the finding that since he had been out of the Air Force for 11 years, the Intelligence Services could not suspect him of giving military intelligence to the terrorists. According to the applicants, the Board ignored the evidence showing that he worked as an instructor in the School of Civil Aviation of Peru, which is part of the Air Force, and that he had provided supplies and transported persons whom he later found out to be members of the Shining Path. At the hearing, he testified that the Intelligence Service accused him of giving military intelligence to the Shining Path because he was a pilot, because he was flying a plane which belonged to the Air Force and because he was flying from airport to airport.
[12] The Board first noted that the applicant's husband had been out of the air force for 11 years and was not privy to military intelligence. Second, the Board questioned that the Intelligence Service believed him to have information on strategic initiatives of the Shining Path as he did not even know that his connections were with members of that group. Finally, the Board noted that there was no evidence that any of the husband's three-man crew or the supervisor at the aviation school were ever questioned by the Intelligence Service.
[13] Given the specialized expertise of the Board with respect to refugee claims, the appropriate standard of review with respect to its factual findings is that of patent unreasonableness. As a result, this Court may only intervene if a decision was made in a perverse or capricious manner or without regard to the material before the Board (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7), which is not the case here. In my opinion, though another decision-maker may reasonably have decided differently, I do not find the Board's conclusions to be patently unreasonable.
Medical Evidence
[14] The applicants submit that the Board had before it a medical report for Mr. Zavalaga regarding his condition on June 8, 2003 and for Ms. Paredes showing evidence of a beating and lacerations of the vagina and the anal regions. They argue that the Board did not give any weight to these medical reports and that dismissing them outright without determining whether they enhanced the credibility of the testimony or provided independent substantiation of harm amounting to persecution is patently unreasonable.
[15] In my opinion, the comments of my colleague Justice Kelen in Sepehri v. Canada (M.C.I.), [2003] F.C.J. No. 1123, a claim for refugee status based on political opinion, are relevant to the case at bar:
[9] The Refugee Division did not commit any reviewable errors that justify this Court's intervention. The panel's finding was reasonable and supported by a wealth of reasons. As is demonstrated by the list above, this is not a case where the panel simply drew a conclusion and did not provide particulars of why it did not find the applicant's claim to be credible. It was also open to the Refugee Division to accord no weight to the medical report. The report confirms the existence of a scar on the applicant's back that could be from a knife, but is not sufficient evidence to link the scar to an incident of persecution.
[16] In the case at bar, the Board also provided particulars as to why it did not find the applicant's claim to be credible. Similarly to Sepehri, the report indicates injuries consistent with sexual assault, but is not sufficient evidence to link the assault to persecution.
[17] I am of the view that the Board committed no error in according no weight to the applicant's medical evidence.
Failure to Seek Protection in the United States
[18] The applicants further argue that the Board erred in law when it found that they had an obligation to seek protection at the first reasonable opportunity open to them.
[19] The applicants are correct that the failure to claim in a safe third country cannot be used as a decisive factor in itself in determining that an applicant lacks subjective fear. However, this factor may be considered in conjunction with other factors.
[20] In my opinion, the failure of the applicants to make a claim for protection earlier was a fact which reflected on their subjective fear. The Board noted that if the applicants had been serious about seeking protection, they would have done so at their first opportunity. Instead, the applicants waited almost a year between inquiring into protection in the United States and moving to Canada and applying here. The Board committed no error in taking this delay into account. The Board noted the principal applicant's explanation, that is, that the applicants spoke with a paralegal in the United States who told them that the United Stateswould likely not accept their claim in the wake of September 11, 2001. However, it is clear that the Board did not accept this explanation as reasonable because the applicants then waited a year before coming to Canada and applying for protection here.
[21] The applicants are correct that it seems that the Board distinguished between seeking advice from a lawyer and seeking advice from a paralegal. In my opinion, however, the Board's intention in making this statement was not to distinguish between the applicants' seeking advice from a lawyer and seeking advice from a paralegal, but was indicating instead that were the applicants truly subjectively fearful, they would have made a refugee claim at the first opportunity, instead of waiting a year before doing so.
[22] However, even if this distinction was in error, it is my opinion that this finding would not invalidate the Board's decision as a whole, as the Board's finding on delay was not determinative.
Conclusion
[23] For all the above reasons, the applicants have failed to show that the Board committed any reviewable error and the application for judicial review, therefore, is dismissed.
Ottawa, Ontario
May 11, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6672-05
STYLE OF CAUSE: HAMAYA MERCEDES FIDELA PAREDES ALONSO (a.k.a. HAMAYA MERCEDES PAREDES ALONSO), FABIANA ZAVALAGA PAREDES, NICOLAS ZAVALAGA PAREDES v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 3, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: May 11, 2006
APPEARANCES:
Mr. Mordechai Wasserman FOR THE APPLICANTS
Ms. Sally Thomas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mordechai Wasserman FOR THE APPLICANTS
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada