Date: 20061027
Docket: IMM-1211-06
Citation: 2006 FC 1299
Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IVAN DANIEL DUQUE BENCOMO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The applicant, Mr. Ivan Daniel Duque Bencomo, seeks judicial review of the negative decision of the Immigration and Refugee Board (IRB) rendered on February 10, 2006. The IRB determined that Mr. Bencomo was not a “Convention refugee” or “a person in need of protection”.
2. Facts
[2] The applicant is a twenty-nine year old citizen of Venezuela who makes a “refugee sur place” claim on the basis of imputed political opinion and membership in a particular social group, namely, his family.
[3] The applicant left Venezuela in 1997 to pursue his studies in the United States and later in Canada. The applicant’s father and twin brother Gabriel Duque are allegedly long time activists in the MAS (Socialist Party) in Venezuela. The applicant made several trips home to Venezuela between 1997 and February 2001.
[4] In December 2001, the applicant was arrested in Canada on charges of aggravated sexual assault and unlawful confinement. The applicant was convicted of these crimes on February 19th, 2004, and sentenced to two years in jail. However, an appeal was launched and the applicant has been released pending the appeal.
[5] The applicant had come to Canada on a student visa. The visa expired sometime in 2003 but the applicant was not asked to leave due to his ongoing criminal appeal. An admissibility report was filed on July 14th, 2004, and his removal has effectively been suspended pending the appeal.
[6] In June 2005, the applicant’s parents entered Canada to attend his graduation. At that time they informed him that they and his twin brother have been under attack by members of the Hugo Chavez-led Bolivarian Circles. The Applicant was informed that on March 7, 2005, the applicant’s twin brother was allegedly shot in the arm. As a result, the Applicant alleges a fear of persecution which stems from the longstanding involvement of his father and twin brother with the MAS, an opposition party in Venezuela. The Applicant fears that he would be targeted as a result of his obvious resemblance to his twin brother. Following their June 2005 visit, the Applicant’s parents returned to Venezuela. They now reside in Bogota, Colombia.
[7] The applicant filed his refugee claim on July 7, 2005.
3. Impugned IRB Decision
[8] The IRB found that the Applicant had not provided credible or plausible evidence to support his allegations of a fear of persecution.
[9] The IRB found the Applicant to be vague on the details of both his brother’s and father’s involvement with the MAS. The IRB noted that the applicant is not and has never been a member of the MAS party. He has not lived in Venezuela since 1997 and has not visited since 2001.
[10] When the Applicant’s parents applied for a visa to enter Canada they listed only two children, and only one born in 1976, the year of birth of the applicant. The existence of the Applicant’s twin brother was put in question. Further, the applicant’s parents had told Immigration Canada that they did not have family in Canada. The Applicant could not explain why his parents would not have listed two children born in 1976. The IRB did not believe that the Applicant was telling the truth and found that the Applicant’s twin brother did not exist. The IRB found this discrepancy further undermines the Applicant’s credibility and the believability of his fear of harm should he return to Venezuela.
[11] The IRB found that the Applicant’s credibility was impugned further by the documentation provided in support of the claim. It noted that the applicant produced a letter from the MAS party concerning his father’s involvement, but the letter merely states that the applicant’s father was a member of the “direction nationale”, and does not list him as a National Coordinator. The applicant’s brother’s membership letter reads exactly the same as his father’s, despite the fact that the claimant’s brother was younger than his father and active with the youth wing of the party. The Applicant produced no newspaper articles to confirm his father’s political involvement. The IRB found this to affect the Applicant’s overall credibility. The applicant also produced a letter from a lawyer that appears to be sent to the applicant’s father concerning the applicant’s family problems with the police. The IRB gave the letter no weight since the Applicant’s evidence is that his family’s problems relate more to the ruling political party and its supporters and not the police. The IRB concluded that it did not believe the Applicant’s motivation is truthful.
[12] The IRB also found, that the Applicant’s allegations are not plausible in light of the documentary evidence of the situation in Venezuela. The IRB found it implausible that MAS party would do nothing, while both father and son would have faced this type of persecution, considering the father’s longstanding involvement with the party.
[13] Finally the IRB found that since the Applicant was never politically active, he could simply move elsewhere in the Country away from Caracas. In the circumstances, the IRB found that a valid internal flight alternative (IFA) was available to the Applicant
4. Issues
[14] The following issues are raised in this application:
A. Did the Tribunal breach the principles of natural justice in not providing a translator?
B. Did the IRB err in making its credibility findings?
C. Did the IRB err when it concluded that the applicant had an IFA?
A. Did the Tribunal breach the principles of natural justice in not providing a translator?
[15] The hearing was conducted in English, as requested by the Applicant in his PIF. He allegedly requested Spanish-English interpretation at the beginning of the hearing but apparently none was available. The respondent disagrees stating that the Applicant requested a hearing in English and did not request the services of an interpreter. The applicant maintains that he can read and understand English when not rushed and is not in a stressful situation. He submits that he agreed to go ahead without an interpreter, against his wishes, because he felt pressured by the Commissioner, and he believes that he could have done better with the help of an interpreter. I have carefully reviewed the record and find no evidence to support the Applicant’s contention.
[16] At page two of the transcript of the hearing the Presiding Member states: “[t]here has been no request for – a formal request for an interpreter today. I understand that you believe that you are able to proceed in English today?” The applicant’s response is: “Yeah, I am”. Further, the transcript provides no indication that the Commission in any way pressured the Applicant as alleged.
[17] The evidence does not support the request for translation was made, or that translation was necessary for the conduct of a fair hearing. I am left to conclude that the principles of natural justice were not violated in this case.
B. Did the IRB err in making its credibility findings?
[18] It is well established that the standard of review for credibility findings is patent unreasonableness. See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469; [2003] F.C.J. No. 1866 (F.C.A.) (QL) at para. 10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL) at para. 4.
[19] The IRB accepted the Applicant’s identity. Contained within the identity documents in the record accepted by the IRB is the Applicant’s birth certificate which makes clear reference to his twin Ivan Gabriel. The applicant submits, and the respondent agrees, that the IRB erred in finding that the applicant’s twin brother does not exist. It appears also that the IRB accepts that Ivan Gabriel Been Como made a visa application to come to Canada. There is little doubt the record establishes the existence of the Applicant’s twin brother contrary to the IRB’s finding. The IRB therefore erred in so finding and as a result erred in impugning the Applicant’s credibility for this reason. While acknowledging the error the Respondent argues that it is not determinative since the IRB’s credibility finding is also based on other factors which make the finding reasonable. These factors include the following:
a. The Applicant was vague when testifying about his father’s and brother’s political involvement;
b. The failure of the Applicant to produce newspaper articles to confirm his father’s involvement;
c. The letter from the party lack detail in respect to the father’s involvement;
d. A similar letter from the party in respect to the son’s involvement is not plausible given his youth;
e. The parents failed to mention the Applicant’s name in their visa Application and their statement to the effect they did not have family in Canada, could not be explained by the Applicant.
[20] I disagree with the Respondent’s contention. While the above findings may have been open to the IRB, I am of the view that its erroneous finding that the Applicant’s twin brother did not exist is central to its overall credibility determination. At page 3 of its reasons the IRB writes:
According to Immigration Canada, on December 8, 2004, Ivan Gabriel Ben Como, presumably the claimant’s twin brother, made a visa application to come to Canada. This was refused. Taken altogether, Immigration Canada appears to believe that there is no twin brother in this case. While the claimant denies this, he is unable to explain why his parents would not have listed two children born in 1976. The panel does not believe the claimant is telling the truth. The non-existence of the claimant’s brother further undermines the claimant’s credibility and believability of any fear of harm should he return to Venezuela. The panel does not believe the claimant is a truthful witness.
[21] The IRB erred in concluding to the Applicant’s general lack of credibility on this basis. The existence of the twin brother is central to the Applicant’s “sur place” claim since his fear of persecution stems from the possibility of being confused with his twin brother because of resemblance. The IRB’s erroneous finding that the twin brother did not exist effectively impugns the very foundation of the claim and taints the entire decision. In concluding as it did, the IRB committed a reviewable error.
[22] Given my above finding which is determinative, it is unnecessary to consider the other issue raised in this judicial application.
7. Conclusion
[23] For the above reasons, the application for judicial review is allowed. The matter will be returned to the IRB for reconsideration before a differently constituted panel.
[24]
Neither party proposed a question for certification.
The Court declines to certify a question.
ORDER
THIS COURT ORDERS that:
1. The judicial review of the decision of the Immigration and Refugee Board is allowed.
2. The matter is returned to the IRB for reconsideration before a differently constituted panel.
3. No question of general interest is certified.
“Edmond P. Blanchard”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: Ivan Daniel Duque Bencomo v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 19, 2006
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Me Stephen J. Fogarty FOR THE APPLICANT
Me Claudia Gagnon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Stephen J. Fogarty FOR THE APPLICANT
288 St-Jacques St.
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec