Date: 19990929
Docket: IMM-6237-98
Ottawa, Ontario, the 29th day of September 1999
Present: The Honourable Mr. Justice Pinard
Between:
LUIS RAFAEL RAMIREZ BERROTERAM
LUIS SANTAGIO RAMIREZ MENDEZ
LUIS MIGUEL REMIREZ MENDEZ
WICTER ADELAIDA MENDEZ MORA
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated November 5, 1998 by the Convention Refugee Determination Division, which determined that the applicants, Luis Rafael Ramirez Berroteram, his wife Wicter Adelaida Mendez Mora and their minor sons, Luis Santagio Ramirez Mendez and Luis Miguel Remirez Mendez, are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
M. Iveson
Date: 19990929
Docket: IMM-6237-98
Between:
LUIS RAFAEL RAMIREZ BERROTERAM
LUIS SANTAGIO RAMIREZ MENDEZ
LUIS MIGUEL REMIREZ MENDEZ
WICTER ADELAIDA MENDEZ MORA
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated November 5, 1998 by the Convention Refugee Determination Division, which determined that the principal applicant, Luis Rafael Ramirez Berroteram, his wife Wicter Adelaida Mendez Mora and their minor sons, Luis Santagio Ramirez Mendez and Luis Miguel Remirez Mendez, are not Convention refugees as defined in subsection 2(1) of the Immigration Act (the Act).
[2] The Refugee Division rejected the applicants" claim principally because of a change in circumstances since they left Venezuela and implausibilities in the principal claimant"s story. It is important to reproduce the following passages from pages 2 to 4 of the decision:
[TRANSLATION]
| We do not have confidence in the applicant"s testimony because it is implausible. Further, we believe that the fear the claimant expressed about returning to Venezuela is totally unfounded because of a change in circumstances. |
| . . . |
| Because he refused to join MRB 200, members of this movement allegedly claimed he was one of them with the sole object of having him killed by the police so that MRB 200 could denounce the killing of an innocent person and thereby tarnish the image of the government. He also purportedly received countless telephone threats of reprisals against his family by MRB 200 in order to stop him from revealing information that it was plotting a coup d'état, which he had learned from his MRB 200 clients. We cannot have confidence in his testimony because of such implausibilities. |
| . . . |
| We also consider that the applicant has not established an objective fear of persecution because MRB 200 is now a recognized, legal political party in Venezuela. According to the latest poll, its leader, Hugo Chavez, was also the leading candidate for president of that country [reference omitted]. Under the circumstances, we believe that the applicant cannot reasonably fear arrest by the police on suspicion of being a member of MRB 200. |
[3] The applicants basically argue that the panel misconstrued the evidence, did not believe the principal applicant and did not challenge him on the implausibilities it found or the change in circumstances.
[4] With respect to credibility and the assessment of the facts, it should also be recalled that this Court cannot substitute its decision for that of such a tribunal when, as in the instant case, the applicants have failed to establish that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act). The applicants were required to establish that their fear of persecution was well founded. I have reviewed the evidence before the Refugee Division and am not convinced that the inferences drawn by this specialized panel could not reasonably have been drawn (Aguebor v. M.E.I. (1993), 160 N.R. 315). Finally, as the Federal Court of Appeal stated in Sheikh v. Canada, [1990] 3 F.C. 238, at page 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.
[5] The application for judicial review must accordingly be dismissed.
[6] Counsel for the applicants suggested a number of questions for certification which all turned on the panel"s obligation to challenge the applicants on the implausibilities it noted, as well as the change in circumstances. In light of the well-established principle that a refugee claimant must establish both the subjective and objective components of the fear of persecution (see for example Chan v. M.E.I. , [1995] 3 S.C.R. 593, at page 659), and considering the specific circumstances of the instant case, in which there is no indication that the Refugee Division"s decision was based on any evidence that was not immediately available to the applicants during the hearing before that tribunal, I do not believe that these questions should be certified (see Liyanagamage v. M.C.I , 176 N.R. 4).
YVON PINARD
JUDGE
OTTAWA, ONTARIO
September 29, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6237-98
STYLE OF CAUSE: LUIS RAFAEL RAIMREZ BERROTERAM et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUG. 25, 1999
REASONS FOR ORDER OF PINARD J.
DATED SEPT. 29, 1999
APPEARANCES:
ALAIN JOFFE
FOR THE APPLICANTS
SHERRY RAFAI FAR
FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALAIN JOFFE
FOR THE APPLICANTS
SHERRY RAFAI FAR
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada