Date: 20030523
Docket: IMM-3502-02
Citation: 2003 FCT 626
Between:
HUMBERTO ANTONIO GONZALEZ ARAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated July 2, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Costa Rica, and claims a well-founded fear of persecution there on the grounds of political opinion and membership in a particular social group.
The applicant is a member of a politically active and powerful family in Costa Rica. His uncle, who is also his godfather, is Rolando Araya Monge ("Monge"). He was the leader of the National Liberation Party ("PLN") and a presidential candidate in elections held in the spring of 2002.
The applicant alleges that he was employed by a political rival of Monge's within the PLN, Gerardo Fait ("Fait"), and that while working for him he discovered that Fait was laundering drug money through his campaign headquarters. The applicant further alleges that he kept a copy of the financial records and informed Monge, who then called Fait and denounced him without first warning the applicant. Fait was allegedly so upset by the call that he angrily confronted the applicant and shot another employee in the stomach. The applicant fled to San Jose, because he feared Fait, Monge, and David Wabe, one of Fait's associates. His mother allegedly informed him that men had come to her home looking for him, had beaten her up and threatened to kill his brothers if she did not reveal his whereabouts.
The applicant fled to Canada on April 1, 2001 and made a refugee claim on April 20, 2001. He alleges that from Canada he contacted La Naci_n, a Costa Rican newspaper, with documentary evidence of the events described above. No stories appear to have been run by the newspaper as a result of this information.
The Board based its decision on a negative credibility finding. In questions of credibility, this Court is guided by the following well established principles. This Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). The Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)). As the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status effectively amounts to a finding that there is no credible evidence for that claim. Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (Monteiro v. Minister of Citizenship and Immigration, 2002 FCT 1258 and Shahamati v. Minister of Employment and Immigration (March 24, 1994), A-388-92 (F.C.A.)). Finally, the Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (Monteiro, supra, and Akinlolu v. Minister of Citizenship and Immigration (March 14, 1997), IMM-551-96 (F.C.T.D.)).
The applicant submits that the Board failed to consider either his or counsel's explanations as to why he was hired by Fait. Given the fact that the Board found the circumstances surrounding the alleged employment to be implausible, it was open to it to request documentary supporting evidence. The Board rejected the evidence tendered because the isolated cancelled cheque did not establish a continuing employer-employee relationship, and because there was no evidence regarding the identity of "Employer Number 164382000" on the social security receipt entered into evidence by the applicant. It was not unreasonable for the Board to accord no probative value to these documents. The Board also clearly considered the applicant's explanations regarding why he was hired, but rejected them as unclear. With respect to the letter from Ernesto Gallegos Fernandez to Fait, any conclusion that the applicant was employed by Fait would have to be inferred; it is not clearly stated in the document. Therefore, although it would have been preferable for the Board to mention this document and its reason for rejecting it, it was not required to do so, given its findings based on the other documents.
The applicant further submits that the Board drew its own conclusions, and based its negative credibility determination on its own "expertise"on the issue of money laundering, without reference to any documentary evidence. The Board did not err in applying common sense and rationality to its assessment of the applicant's claim. Furthermore, it did specifically consider the documentary as well as the testamentary evidence provided by the applicant, as indicated at pages 6-7 of the decision, yet it found that the evidence constituted "standard business and political accounting documents" and did not establish any impropriety.
The applicant also argues that, although he could not provide a detailed analysis of the legislation on campaigning to the Board, he was sufficiently aware of the laws to be able to recognise Fait's non-compliance with them. However, the applicant testified that he was not aware of the campaign financing laws when he was in Costa Rica, and only came to know about them once he consulted a lawyer in Canada.
With respect to the failure of La Naci_n to report on the corruption or to respond to the applicant's information, the applicant submits that the Board failed to consider relevant documentary evidence, specifically country condition information relating to the dangers associated with reporting on corruption. A tribunal must be presumed to have considered all of the evidence that was presented to it, and it is not obliged to mention in its reasons all the evidence it has taken into account before rendering its decision (Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99 (F.C.T.D.)). However, the more relevant the evidence, the more important it is for the decision-maker to address it in its reasons, especially if it directly contradicts the Board's findings (see Cepeda-Gutierrez v. Canada (M.C.I.) (1998), 157 F.T.R. 35). In this instance, I agree with the respondent that the country condition information was irrelevant. The Board found that the newspaper would not be interested in the documents submitted by the applicant since they do not establish any impropriety by Fait. Furthermore, the Board found the circumstances surrounding the alleged delivery of information to the newspaper to be implausible, since the applicant could not remember the name of the journalist to whom he sent it, and because, if the other elements of the story were true, he would have been placing his family in immediate danger by exposing Fait. It was not unreasonable for the Board to question the applicant's credibility on this issue.
The applicant further submits that the Board failed to address his explanation of the shooting, and improperly relied on undocumented and unspecified knowledge in its interpretation of events. The applicant's argument on this point is without merit, as during his testimony he agreed with the Board that a gunshot wound would have to be reported to the police, even if the victim were taken to a private hospital. Therefore, it was reasonable for the Board to find the applicant's original explanation that the gunshot wound would not be reported at a private clinic to be lacking in credibility.
The applicant also argues that the Board's rejection of his evidence on the basis that it was not "in keeping with the character of a state which is often termed 'the Switzerland of Central America'" contradicts directly the documentary evidence before the Board regarding police and official corruption. Read in context, the Board's description of Costa Rica's character was made in direct reference to the fact that a gunshot wound would have been reported by any attending physician, and is not a general description of the state of the country. With this statement, the Board is neither contradicting nor ignoring the evidence on country conditions which describe money laundering and drug trafficking in the public and private sectors.
Finally, the applicant submits that the Board erred in dismissing his claim that he had a genuine fear of Monge. The Board found that the applicant's testimony concerning his relationship with Monge was inconsistent, and that his sudden fear and antipathy toward his uncle appears in his evidence without any logical development within the fabric of his story. Further, the applicant did not state that he feared harm from his uncle in his Personal Information Form. On the evidence before it, it was not unreasonable for the Board to conclude that the applicant was insincere in alleging a fear of Monge.
For all the above reasons, considering that the applicant's arguments are all related to the appreciation of the facts made by the Board, I conclude that the applicant has totally failed to show that the Board's decision is patently unreasonable and, therefore, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3502-02
STYLE OF CAUSE: HUMBERTO ANTONIO GONZALEZ ARAYA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 24, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 23, 2003
APPEARANCES:
Maureen Kirkpatrick FOR THE APPLICANT
Caroline Christiaens FOR THE RESPONDENT
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Date: 20030523
Docket: IMM-3502-02
Ottawa, Ontario, this 23rd day of May, 2003
Present: The Honourable Mr. Justice Pinard
Between:
HUMBERTO ANTONIO GONZALEZ ARAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board dated July 2, 2002, determining the applicant not to be a Convention refugee, is dismissed.
JUDGE