Date: 19971125
Docket: IMM-4041-96
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
ROBERTO ARTURO RUBILAR UTILLANO,
LIDIA GLORIA ORTIZ PEREZ,
PAULA ANDREA RUBILAR ORTIZ,
GONZALO ANDRES RUBILAR ORTIZ,
CAMILA ABIGAL RUBILAR ORTIZ,
JOHANA FRANACIS RUBILAR ORTIZ,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 25, 1997
Certified true translation
Christiane Delon
Date: 19971125
Docket: IMM-4041-96
BETWEEN:
ROBERTO ARTURO RUBILAR UTILLANO,
LIDIA GLORIA ORTIZ PEREZ,
PAULA ANDREA RUBILAR ORTIZ,
GONZALO ANDRES RUBILAR ORTIZ,
CAMILA ABIGAL RUBILAR ORTIZ,
JOHANA FRANACIS RUBILAR ORTIZ,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] The application for judicial review concerns a decision rendered on October 15, 1996 by the Convention Refugee Determination Division, which found that the main applicant, Roberto Arturo Rubilar Utillano, his spouse, Lidia Gloria Ortiz Perez, and his children, Paula Andrea, Gonzalo Andres, Camila Abigal and Johana Franacis Rubilar Ortiz, are not Convention refugees and that there is no credible basis for their claims. The applicants are all citizens of Chile, and the claims of the spouse and the four children are based on that of the main applicant.
[2] As can be seen from the decision to which this application relates, the Refugee Division stated the following after summarizing the facts:
| [translation] We pointed out to the claimant that, first of all, one might wonder why he was constantly being attacked even though there had been two free elections in Chile since 1989. There is freedom of the press in Chile, and people can and do make their problems or disagreements with the government known almost on a daily basis. |
| In addition, as far as union relations in Chile are concerned, Exhibit A-15 states that there is not especially any tension between the police and union officials. There are problems negotiating work agreements, but that has nothing to do with persecution. Moreover, we pointed out to him that Exhibits A-22 and A-28 state that if there are abuses, when the police commit abuses, they can be convicted by the courts. |
| In this regard, 249 police officers have already been dismissed for unacceptable conduct. |
| The panel does not believe the claimant"s story that he was continually being hounded because he made a statement on the radio about the negotiations then being conducted between the union and the employer. |
[3] What is essentially involved here is a question of fact and of credibility. In this regard, it seems to me that the panel"s decision was based on important evidence in the record, including documents A-15, A-22 and A-28, which formed part of the documentary evidence on Chile. Although, as I have already noted in other such cases, that documentary evidence as a whole does not always reveal a situation as favourable as the one that emerges from the panel"s decision, the fact remains that there was enough reliable documentary evidence to support the decision. In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at pages 316-17, Décary J.A., writing for the Federal Court of Appeal, described the standard of deference applicable to such a panel"s finding of credibility:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[4] In Zhou v. M.E.I. (July 18, 1994), A-492-91, Linden J.A., writing for the Federal Court of Appeal, confirmed that the panel is entitled to give more weight to the documentary evidence adduced than to the applicant"s testimony:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
[5] Noël J. of this Court rendered two decisions to the same effect in Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, and the very recent Andrade et al. v. M.C.I. (May 5, 1997), IMM-2361-96. In Victorov, the Court noted the following:
| I also reject the applicants" argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. |
[6] In Andrade, in which the applicants were both citizens of Chile, Noël J. wrote the following:
| The applicants have not questioned the facts as recounted by the tribunal. However, they contend that the tribunal rejected their claims on the sole basis of the documentary evidence. According to the applicants, the tribunal should have accepted the uncontradicted testimony of the principal applicant. |
| I am not of this opinion. The tribunal"s decision is not based solely on the documentary evidence. It was the events recounted by the principal applicant, when considered having regard to the documentary evidence, that led the tribunal to conclude that his account was implausible. After considering the testimony of the principal applicant, I conclude that the tribunal was entitled to draw that conclusion. |
| The applicants also contend that the tribunal ignored the documentary evidence that could have confirmed the events they stated they had experienced. I am rather of the view that the tribunal responded to the invitation extended to them by the officer responsible for verification to assess the logic of the principal claimant"s account in light of the conditions suggested by the weight of the documentary evidence. There is nothing to suggest that in so doing the tribunal did not lend an attentive ear to all the evidence that was before it. |
[7] In the case at bar, since it is my view that the applicants have not discharged the burden that rests on them of showing that the inferences drawn by the Refugee Division, which is a specialized tribunal, could not reasonably have been drawn, the following conclusions by the panel must be upheld:
| [translation] After analysing the evidence adduced, we find first of all that the claimant, Roberto Arturo RUBILAR UTILLANO, has not discharged the burden of proof imposed on him by the Act, which requires him to show us that he has a reasonable fear of being persecuted if he returns to Chile. We further conclude that there is no credible basis for this claim. |
| In these circumstances, we cannot grant him the status of a refugee as defined in section 2(1) of the Immigration Act, nor can we grant that status to his wife and children, who are basing their claims on his. We conclude that there is no credible basis for their claims either. |
[8] Accordingly, the application for judicial review must be dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 25, 1997
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT NO.: IMM-4041-96 |
| STYLE OF CAUSE: Roberto Arturo Rubilar Utillano et al. v. M.C.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 13, 1997 |
| REASONS FOR ORDER BY: PINARD J. |
| DATED: November 25, 1997 |
APPEARANCES:
Oscar Fernarndo Rodas FOR THE APPLICANTS
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Rodas FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada