Date: 20000420
Docket: IMM-2631-99
OTTAWA, ONTARIO, THE 20TH DAY OF APRIL, 2000
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
ARMANDO MILIAN SANCHEZ
JONHARMAND MILIAN SANCHEZ
SINAI MILIAN VERA
CARMEN GRACIELA VERA PINERO
AMELIA NATHALY VERA MIJARES
MERCEDES HORTEN VERA DE MILIAN
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
ORDER
The application for judicial review is dismissed.
| Marc Nadon |
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000420
Docket: IMM-2631-99
Between:
ARMANDO MILIAN SANCHEZ
JONHARMAND MILIAN SANCHEZ
SINAI MILIAN VERA
CARMEN GRACIELA VERA PINERO
AMELIA NATHALY VERA MIJARES
MERCEDES HORTEN VERA DE MILIAN
Applicants,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") rendered April 6, 1999 that the applicants are not Convention refugees as defined by section 2(1) of the Immigration Act .
[2] The principal applicant, Mr. Armando Milian Sanchez, is a citizen of Venezuela and says he has a well-founded fear of persecution based on his political opinions. The other applicants1 based their claims on the principal applicant"s claim.2
[3] The applicant alleges that he was participating in a movement for the protection of the environment and that he denounced the big companies that were not complying with the controls. He was consequently attacked by the representatives of these companies and was detained by the police for denouncing the vandalism of a school. He was also threatened. One night, during a meeting at his home, his house was machine-gunned. Several days later, he left his country to come to Canada. His family subsequently came to join him.
[4] The Refugee Division concluded that the principal applicant had "[Translation ] no credibility" since his account was incoherent, improbable and contradictory. It noted, first, that the applicant had submitted three stories to explain why he left his country: first, he submitted his Personal Information Form ("PIF") on May 17, 1995; second, he made an addition on March 25, 1996, in which he mentioned the machine-gun incident for the first time; and finally, he submitted a chronological table on January 25, 1999.
[5] The Refugee Division asked the principal applicant why he had not mentioned the machine-gun incident in his PIF. He answered as follows: "[Translation ] I cannot tell you why [sic] was not mentioned."3 The Division concluded:
| [Translation] The panel has some serious questions, therefore, about the authenticity of this incident, since it is reasonable to think that, given its significance and the decisive role it appears to have played in the claimant"s decision to come to Canada, the claimant would surely have mentioned it, had it indeed occurred, in his very first PIF. |
This conclusion, in light of the evidence, is entirely reasonable, in my view. In his PIF, the applicant refers to other incidents that occurred; for example, he says he was held for two days after denouncing the vandalism in a school in 1994, that he was dismissed from his job owing to his political activities, that he was assaulted with a firearm in January 1995. Yet he does not mention that his house was machine-gunned a year later, in March 1996. It seems completely improbable to me that the applicant could forget to mention an incident of such importance in his PIF, since this was the incident that supposedly convinced him to come to Canada.
[6] Similarly, the applicant did not mention a summons to report to the National Guard office until January 1999, almost four years after his arrival in Canada. His explanation of this omission is that his lawyer advised him to elaborate on his story at the hearing. The Refugee Division did not accept his explanation:
| [Translation] Concerning this point, it should first be said that this summons does not list any date of issue; secondly, it must be pointed out that the explanation supplied by the claimant does not stand up, in our opinion, not only because the claimant has a duty to mention in his PIF all of the facts pertaining to his claim, but also because prior to preparing the account of January 1999 he had already made an addition in March 1996 to report the incident of March 16, 1995 when, he says, his residence was machine-gunned. He was then asked why, when making this addition, he had not used the occasion to say he had been given this summons to report and that he had in fact reported. He explained that his then counsel, the lawyer who had prepared the addition of March 1996, had told him he was going to mention everything and that he himself had not learned about the addition of March 1996 until 1997. But even if this were true, there is no reason why he did not, in 1997, make a further addition to mention this episode in the events that were reported. |
Furthermore, in his accounts of May 1995, March 1996 and January 1999, the applicant did not refer at all to an arrest warrant issued against him, which led the Refugee Division to conclude that this document was of no probative value and "[Translation ] seems to have been prepared solely for the purposes of the claim, since it [the panel] is convinced that if indeed the claimant had an arrest warrant pending against him, he would have mentioned it in one or another of his accounts...." Again, I can only conclude that this finding is completely reasonable.
[7] Incidentally, during the hearing the applicant testified that his wife and children had been threatened since his departure from Venezuela. Yet these threats do not appear in the applicant"s accounts. When he was asked why he had not mentioned these threats, he answered: [Translation ] I can"t [sic ] why I did not mention it in writing."4 Given that the applicant provided no explanation for this discrepancy, the Refugee Division stated that it was "[Translation ] inclined to think that this story of threats toward the claimant"s wife and children was simply contrived for the purposes of their claims".
[8] There is no question that applicants for refugee status must relate all of the important facts in support of their claim. Question 37(a) of the PIF states:
| Set out in chronological order, all the significant incidents which caused you to seek protection outside of your country of nationality or former habitual residence. Please also make reference to any measures taken against you, your family members, or any other individuals in a similar situation. [Emphasis added] |
[9] Thus, in my opinion it was completely reasonable for the Refugee Division to take a dim view of the fact that the applicant had omitted several significant facts.5 In Basseghi v. M.C.I., [1994] F.C.J. No. 1867, Teitelbaum J. stated:
| It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one"s PIF. The oral evidence should go on to explain the information contained in the PIP. |
Furthermore, in Oduro v. M.E.I., [1994] 73 F.T.R. 191, McKeown J. expressed the following opinion, at pages 194-95:
| The applicant submits that it was wrong to say his testimony was unreliable because it was more detailed than the PIF. In my view the Board determined that the applicant omitted to disclose in his PIF material portions of events related to the determination of whether the applicant was persecuted. It was open to the Board to determine that these additions were added in his testimony to enhance the fear of persecution. It is no answer to say that the Board told him it was only interested in greater detail and not to repeat the contents of the PIF. |
Similarly, in Uppal v. Canada (Solicitor General) (1997), 27 IMM. L.R. (2d) 232, at page 233, Reed J. concluded that the triggering event " in this case, a five-day detention " should have been mentioned in the PIF. Madam Justice Reed stated:
| I agree that it is an "old saw" for the Board to say that if the description of an event wasn"t in the PIF, then, the likelihood of it having occurred is dubious. However, in this case the alleged five day detention, in 1988, was a very crucial factor. It was the event which allegedly led to the applicant"s flight from India. It was not unreasonable, in those circumstances, then, for the Board to refer to the fact that the detention was not mentioned in the PIF and to conclude that such absence was a reason for disbelieving that the detention had occurred. |
[10] I fully agree with my colleagues" opinion. Consequently, since the applicants have failed to persuade me that the Refugee Division committed an error, either in fact or in law, which would allow me to intervene, the application for judicial review will be dismissed.
[11] The final point to address is the question of certification. The applicants submit that the following question should be certified:
| [Translation] In light of the Pushpanathan and Baker judgments, is the standard of judicial review of the decisions rendered by the Immigration and Refugee Board in questions of fact or questions of mixed law and fact now one of patent unreasonableness or reasonableness simpliciter? |
[12] In Liyanagamage v. M.C.I. (1994), 176 N.R. 4, the Federal Court of Appeal explained the principles concerning the certification of a serious question:
| In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (Ont. H.C.)) but it must also be one that is determinative of the appeal. |
[13] In my opinion, the conclusions concerning the applicant"s credibility are reasonable. Accordingly, whether the standard of review is "patently unreasonable" or "reasonable simpliciter" is irrelevant in this case. In any event, in my opinion the applicable standard is the standard of reasonableness simpliciter and it is this standard that I have applied here.6
[14] For these reasons, I am of the opinion that the question proposed by the applicants does not warrant being certified.
Marc Nadon
J.
O T T A W A, Ontario
April 20, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-2631-99 |
| STYLE: ARMANDO MILIAN SANCHEZ et al. |
v. M.C.I.
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: MARCH 28, 2000 |
REASONS FOR ORDER OF NADON J.
DATED: APRIL 20, 2000
APPEARANCES:
ALAIN JOFFE FOR THE APPLICANTS
CLAUDE PROVENCHER FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALAIN JOFFE FOR THE APPLICANTS
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
__________________1 The other claims concern Mercedes Horten Vera de Milian, the wife of the principal applicant; Jonharmand Milian Vera, his son; Sinai Milian Vera, his daughter; Carmen Graviela Vera Pinero, the principal applicant"s mother-in-law; and Amelia Nathaly Vera Mijares, the niece of the principal applicant"s wife.
2 The Refugee Division also heard the claim of Jesus Enrique Cornejo Colorado, the son-in-law of the principal applicant, in the same decision, but he has filed his own application for judicial review. Mr. Colorado"s docket number is IMM-2629-99. Accordingly, his application for judicial review will be dealt with separately.
3 Page 189 of the transcript of January 25, 1999 (page 841 of the Panel Record).
4 Page 194 of the transcript of January 25, 1999 (page 846 of the Panel Record).
5 See also Grinevich v. M.C.I., [1997] F.C.J. No. 444 and Kutuk v. M.C.I., [1995] F.C.J. No. 1754.
6 For a discussion of the standard of review, see the decision of the Supreme Court of Canada in Canada (Director of Investigations and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pp. 776 and 777.