BETWEEN:
PATRICIA BARBOZA DIAZ
Applicants
and
MINISTER OF CITIZENSHIP
Pinard J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated September 2, 2005, that the applicants are not “Convention refugees” or “persons in need of protection” as defined by sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Francisco Mojica Romo and Patricia Barboza Diaz (the applicants) are citizens of Mexico. Patricia Barboza Diaz’s claim is based on the claim of her husband, Francisco Mojica Romo (the applicant), who alleges that he fears persecution on the basis of his membership in a particular social group. They also allege that they are “persons in need of protection” in that they would be personally subjected to a danger of torture and to a risk to their life, or to a risk of cruel and unusual treatment or punishment in Mexico.
[3] On January 20, 2005, the applicant, who says that he witnessed a drug transaction in his neighbourhood and reported this transaction to the judicial police, became the target of the dealer nicknamed “the Tata”, as well as of the judicial police.
[4] On January 21, 2005, the applicant was allegedly persecuted in that he was assaulted twice and was threatened, namely with death.
[5] On February 7, 2005, during the second assault, the applicant’s wife, then pregnant, was pushed and hurt, resulting in the loss of her twins.
[6] Fearing for their lives, the applicants left Mexico for Canada on February 28, 2005, the date that they claimed refugee protection.
[7] The applicants allege that the IRB erred in law based on the fact that its reasons were unreasonable, not based on the evidence and involved errors of law.
[8] In its analysis at page 2 of the decision, the IRB writes:
The credibility of the evidence presented by the claimants was undermined by a fundamental contradiction that goes to the very heart of their refugee protection claim.
. . .
This discrepancy could not be explained to the panel’s satisfaction during the hearing of August 31, 2005; it is therefore a fatal contradiction.
. . .
The panel is of the opinion that such a contradiction removes all credibility from this refugee protection claim.
[9] The contradiction referred to by the IRB is a contradiction between the version of the facts that the applicants gave to the immigration officer at the port of entry and the one contained in their Personal Information Form (PIF). At the port of entry, the applicants claimed that the death threats directed at the applicant were made by “strangers”, while they specified in their PIFs that they feared the corrupted judicial police who were with the drug trafficker “Tata”.
[10] The applicants are correct in contending that the Federal Court has pointed out some of the pitfalls for tribunals using port of entry notes and PIFs, going overboard to identify contradictions and omissions in order to find a lack of credibility, when that was not always the case. The nature and significance of the contradiction or the omission as well as the time of the amendment must be taken into account as well as any explanation given by the claimant (Singh v. Canada (M.C.I.), [1996] F.C.J. No. 963 (F.C.T.D.) (QL) and Anthonipillai v. Canada (M.C.I.), [1995] F.C.J. No. 1774 (F.C.T.D.) (QL)).
[11] Certainly, if an applicant cannot satisfactorily explain a contradiction regarding a central element of his story, it would not be patently unreasonable for the IRB to find that the applicants’ story is not credible (Chen v. Minister of Citizenship and Immigration, 2005 FC 767).
[12] The nature and significance of the applicants’ contradiction or omission in the immigration officer’s notes at the port of entry and their PIFs must therefore be assessed.
[13] In my opinion, the contradiction identified by the IRB is not a major contradiction. It is true that the applicants did claim at the port of entry that death threats made against the applicant were made by “strangers”, while they stated in their PIFs that they feared the corrupt judicial police who were with the drug trafficker “Tata”. At the hearing, they testified initially that they feared the judicial police and “the Tata”. The applicants also used the term “strangers” repeatedly in their testimony to describe the people that harassed them, who they now presume were people associated with “the Tata” and who they presume were judicial police. In my opinion, it is plausible that the applicants would have used the term “strangers” to describe the persons who harassed them because they did not know who those individuals were, even though they did learn some time later that those individuals were probably had ties with “the Tata” and that they were probably judicial police.
[14] The IRB therefore noted that there was a contradiction between the notes of the immigration officer at the port of entry and the applicants’ PIFs. However, I am not persuaded that it is a contradiction of great significance. In my opinion, it is understandable that the applicants would have used the term “strangers” in a very general sense, a term that they also used in their testimony.
[15] I therefore consider that the IRB made a patently unreasonable error in not assigning any credibility to the story alleged by the applicants based solely on a minor contradiction between what had been stated at the port of entry and in the PIFs. It is also my opinion that the IRB’s reasons reveal a breach of the principles of procedural fairness. In its analysis, at page 2 of the decision, the IRB writes:
This lack of credibility on the part of the claimants was confirmed several times during the hearing. During his testimony, the principal claimant contradicted himself numerous times.
[16] The Federal Court of Appeal has stated on several occasions that the grounds leading to a dismissal of the evidence or a negative credibility finding must be set out clearly. That usually includes the obligation to provide explanations or examples. It is not enough to say that the evidence is not trustworthy, because that would create the appearance of arbitrariness (Tung v. Canada (M.E.I.), [1991] F.C.J. No. 292 (F.C.A.) (QL); Guzman v. Canada (M.C.I.), [1997] F.C.J. No. 1816 (F.C.T.D.); Armson v. Canada (M.E.I.), [1989] F.C.J. No. 800 (F.C.A.) (QL)).
[17] As the Federal Court of Appeal explained in Mehterian v. Canada (M.E.I.), [1992] F.C.J. No. 545 (QL):
If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary.
[18] The respondent contends that, in this case, the situation is different from the one in the Mehterian decision, where the reasons for the IRB decision were inexistent.
[19] In my opinion, even if the IRB in this case provided reasons, those reasons do not explain in clear, precise and intelligible terms in what way the applicant “contradicted himself numerous times”. The IRB did not give any example other than the one relating to the minor contradiction that I addressed earlier.
[20] In my opinion, the IRB failed to give adequate reasons for its decision and, in so doing, breached the principles of natural justice.
[21] For all of these reasons, the application for judicial review is allowed and the matter referred back to a differently constituted panel of the IRB for rehearing and redetermination consistent with these reasons.
Ottawa, Ontario
May 11, 2006
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6015-05
STYLE OF CAUSE: FRANCISCO MOJICA ROMO, PATRICIA BARBOZA
DIAZ v. MINISTER OF CIOTIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 13, 2006
REASONS FOR JUDGEMENT: Pinard J.
APPEARANCES:
Cristina Marinelli FOR THE APPLICANTS
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cristina Marinelli FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada