Federal Court Decisions

Date: 20050121

Docket: IMM-997-04

Citation: 2005 FC 100

Ottawa, Ontario, this 21^st day of January, 2005

Present:           THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

                                          RICHARD ALDO VELASQUEZ SARRIA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

(Delivered from the bench and subsequently written for precision and clarification)

[1]                 The Applicant, Richard Aldo Velasquez Sarria is a citizen of Venezuela who arrived in Canada on June 28, 2002. The Applicant and his family are originally from Peru. His father was involved with an organization called the Shining Path in Peru. When the group became violent, the Applicant's father left the Shining Path and moved his family from Peru to Venezuela in 1978. The Applicant asserts that the Shining Path dispersed to surrounding countries such as Venezuela and some of its members have continued to attack and kill various members of his family in Venezuela. His parents fled to Canada and were found to be Convention refugees.

[2]                 The Applicant claims the Shining Path have continued to pursue him since 1993, have attacked and scarred his face, killed his brother in law, kidnapped and raped his sister and are intent on killing him. He has no faith in Venezuelan state assistance due to the police_s failure to assist when his family sought their help in the past. He states he cannot seek Peruvian state protection because he renounced his Peruvian citizenship when he received his Venezuelan citizenship.

[3]                The Board rejected the Applicant's claim finding him not to be credible and preferring documentary evidence over his testimony as to the activity of the Shining Path in Venezuela. It made no reference to the medical evidence or to the sworn affidavits of his family members.

[4]                The Board, while not obliged to refer to each piece of evidence, must comment on the bulk of the evidence presented. In this case the Board did not comment in any way on the various sworn affidavits and testimony before it, nor did it refer at all to the medical evidence (see Ana Vilma Irarrazabal-Olmedo v. Minister of Employment and Immigration, [1982] 1 F.C. 125; also Syed v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1331).

[5]                The Board further stated that it preferred two items of documentary evidence over the Applicant's and other witnesses' sworn testimony. Yet, the second of the piece of documentary evidence states that it "does not purport to be conclusive as to the merit of any particular claim to refugee status" (see Tribunal Record at p. 294).

[6]                It is well established that a Board has to make its finding of credibility on a firm basis. Here it found one single error in the PIF, rejected the Applicant's perfectly plausible explanation and found him to lack credibility on the basis of said "implausibility". This is not a sufficient basis, absent any other finding, to consider the Applicant not trustworthy or credible.

[7]                In light of these facts, the Board's decision does not pass the patently unreasonable test. Accordingly, this application will succeed.

ORDER

THIS COURT ORDERS that this judicial review be granted and the application for refugee status be remitted to a differently constituted panel of the Board for reconsideration.

"K. von Finckenstein"

                                                                                                                                                   Judge                       

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                                                                IMM-997-04

STYLE OF CAUSE:                                                               RICHARD ALDO VELASQUEZ SARRIA v. MCI

PLACE OF HEARING:                                                         Ottawa and Toronto via videoconference

DATE OF HEARING:                                                           January 20, 2005

REASONS FOR ORDER AND ORDER:                           The Honourable Mr. Justice von Finckenstein

DATED:                                                                                  January 21, 2005

APPEARANCES:

SOLICITORS OF RECORD: