Date: 20000504
Docket: IMM-1144-99
Between:
OSCAR GUZMAN MUNOZ
PAULO GUILLERMO GUZMAN ARAVENA
CHRISTIAN MAURICIO GUZMAN ARAVENA
CLAUDIA ESTER ARAVENA VILLEGAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] The Guzman family, composed of Oscar Guzman Munoz, his wife Ms. Claudia Ester Aravena Villegas, and their infant children Paulo and Christian Guzman Aravena, citizens of Chile, left that country March 24, 1996 and arrived the next day in Canada, where they claimed refugee status. In support of their claim, they say they fear persecution in Chile by reason of the political opinions attributed to the father, the principal claimant.
[2] On February 10, 1999, the Refugee Division (the "panel") ruled that the principal claimant, the applicant herein, had no credibility and concluded that the members of this family are not Convention refugees. With leave of this Court, by way of judicial review, the applicants are seeking to have this decision set aside and to be given a new hearing. They submit that the improbabilities identified in the decision do not take into account the replies given by the principal claimant and that the decision is based on a biassed review of the record.
B. THE PANEL"S DECISION
(a) The summary of the testimony
[3] The panel states that the problems of the applicant, Mr. Munoz, are connected with certain incidents occurring in his restaurant involving a lieutenant in the Carabineros and the investigative police. As the applicant describes it, this restaurant, which he had been operating since 1986, was frequented by major political and police personalities. In March 1988, the applicant reports becoming a member of the Socialist Party.
[4] In 1990, the applicant told the panel, Carabineros lieutenant Marcelo Palacios sought to install microphones in a private room of the restaurant; Mr. Munoz refused this request and this refusal appears not to have had any consequences.
[5] In March 1991, Mr. Munoz mentioned the incident to the investigations commissioner of the investigative police, Simon Cubillos. Commissioner Cubillos suggested that he warn him if he thought the restaurant"s telephone line was being tapped.
[6] In December 1992, Commissioner Cubillos, accompanied by four other people, appeared at the restaurant. These people had been working in the restaurant"s private room and had discovered some microphones. When this discovery was made, the applicant denied having authorized the Carabineros to install these mikes.
[7] On August 1, 1993, the applicant reports, he was detained by Lieutenant Palacios, who accused him of participating in an investigation with the police; he was struck, he says, and then taken to the hospital. Following this assault, the applicant decided to remove the mikes from the private room in his restaurant.
[8] On December 8, 1993, the Carabineros went to eat in the said room in the restaurant, and then decided to remove the microphones. Two investigators from the investigative police went, two days later, to ask the claimant who was responsible for this action. The day after this visit, the applicant reports, he was called in by Commissioner Cubillos who accused him of collaborating with the Carabineros; following this accusation, he was locked up for a day.
[9] On September 1, 1994, the applicant was again arrested by the Carabineros and placed in a cell for three days. On April 4, 1995, Commissioner Cubillos met with the applicant and ordered him to inform on the Carabineros by saying that they had installed some mikes in his restaurant and that the police had discovered them.
[10] On September 11, 1995, the applicant says, he was arrested and jailed by a Carabinero for two days. Subsequently, he met with Commissioner Cubillos and told him he wished to consult a lawyer before signing the information. Commissioner Cubillos then threatened him. Following these threats, the claimant and his family decided to flee Chile on March 25, 1996.
(b) Improbabilities and contradictions
[11] In support of its conclusion, the panel listed the following improbabilities and contradictions:
| (a) the lengthy period between the offer by Lieutenant Palacios to install microphones in the applicant"s restaurant, made in 1990, and the applicant"s discussion about this with Commissioner Cubillos, in 1991; |
| (b) between the fact that Commissioner Cubillos decided in December 1992 to appear at the restaurant without informing the applicant of his doubts concerning the presence of microphones, and the fact that the applicant had in fact found some microphones in the restaurant; |
| (c) between the fact that Commissioner Cubillos accused the applicant of collaborating with the Carabineros while he was the one who had informed on them by informing the applicant of the request to install mikes. The panel thought the applicant"s explanation was unreasonable on this point. |
| (d) between his PIF, in which he reports his decision in August 1993 to remove the mikes after the authorization provided by Commissioner Cubillos to install mikes for counter-espionage purposes, and his oral testimony, in which he said, first, that he had not removed the mikes, and second, that he had removed them, adding later that he had not removed all of them because he was unable to locate them all and then that he simply intended to remove them. In the panel"s opinion, "[Translation ] this confusion damages the claimant"s credibility." |
| (e) the fact that the microphones were said to belong to the Carabineros as well as to the investigative police. On this point, the panel states: "[Translation ] it is improbable that the claimant was accused by the investigative police of removing the microphones when it was the Carabineros who had done it." Indeed, the panel says, each and every one had to be able to spy on each other. Yet this improbability is a key element in the claimant"s story, the panel says. |
| (f) the confusion in the applicant"s testimony concerning what he told his lawyer: the fact that he failed to mention the proposal by Commissioner Cubillos that he lay an information but later stated in his testimony that he had told his lawyer everything about his incarcerations and that he had barely referred to the information. He had not disclosed the story about the microphones in order to disclose it later. The panel says: "[Translation ] all of these equivocations undermine the claimant"s credibility." |
| (g) between a letter filed by the applicant confirming his sympathy with the Chilean left and his statement in his entry record that he is a member of the Democratic Party; the panel also notes the lack of any mention in the entry record of having been imprisoned. |
| (h) no mention by the principal claimant in his PIF of having hid with the family between September 1995 and March 1996 while, notwithstanding this, continuing to work at the bakery. According to the panel, "[Translation ] this omission and this conduct are incompatible with a subjective fear, and the delay in leaving his country." The panel adds that if there were a search out for him, it is improbable that he could have legally obtained a passport on March 1, 1996. |
[12] The panel concludes its decision in the following words:
| [Translation] The principal claimant"s story includes some improbabilities on major points. The claimant also contradicted himself in his oral testimony. The improbabilities and contradictions have undermined the claimant"s credibility. |
C. ANALYSIS
[13] When a panel bases its findings on a claimant"s lack of credibility, this Court may intervene in only very limited circumstances. Suffice it to refer to a few decisions of the Federal Court of Appeal on the matter.
[14] In Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300, at page 306, Stone J.A. stated:
| If it is apparent that a decision of the Board was based on the claimant"s credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court.... Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility. |
[15] In Giron v. Canada (M.E.I.), [1992] F.C.J. No. 481, the late Mr. Justice MacGuigan of the Federal Court of Appeal noted that a finding of lack of credibility "based on internal contradictions, inconsistencies, and evasions... is the heartland of the discretion of triers of fact". In Wen v. The Minister of Employment and Immigration , June 10, 1994 (A-397-91), Stone J.A. said:
The Refugee Division"s decision turned wholly on an adverse finding of the appellant"s credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant"s story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division.
That apart, we also observe that the adverse finding was based as well on the appellant"s answers being "confusing" and "evasive". This assessment of personal demeanour ought not to be interfered with by this Court which lacks the advantages available to the triers of fact.
[16] Having reviewed the transcript contained in the panel"s certified record, I conclude that the panel could conclude from the evidence that the testimony of the applicant, the principal claimant, was, when all is said and done, improbable and contradictory. As this conclusion would indicate, the panel rightly dismissed the principal claimant"s request for refugee status, based on his lack of credibility.
[17] By way of examples, I note the accuracy of the following observations: (1) the confusion over the removal of the microphones in the applicant"s testimony, which is clearly apparent at pages 349 to 351 of the certified record; (2) the long period between the initial encounter with Lieutenant Pallacios in 1990, his conversation with Commissioner Cubillos in April 1991 and the latter"s arrival at the restaurant in December 1992; this contradiction is clearly established in his PIF and in the evidence (pages 22 and 23 of the PIF, 333 and 334 of the certified record); (3) the panel"s conclusion as to what the applicant told his lawyer, which is not an unreasonable conclusion from a reading of the applicant"s testimony, at pages 357 to 362 of the certified record; and (4) the panel"s conclusion as to the applicant"s conduct after the threat received from Commissioner Cubillos (see the certified record at pages 356 and 357).
CONCLUSION
[18] For all these reasons, this application for judicial review is dismissed. No question was proposed for certification, and I see no need to formulate one.
| "François Lemieux" |
| J. |
Ottawa, Ontario
May 4, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-1144-99 |
| STYLE: OSCAR GUZMAN MUNOZ et al. |
- and -
The Minister of Citizenship and Immigration
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 5, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: May 4, 2000
APPEARANCES:
Manuel Centurion FOR THE APPLICANTS
(articling student)
Sylvianne Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada