Date: 20040811
Docket: IMM-6753-03
Citation: 2004 FC 1110
Toronto, Ontario, August 11, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
ROSA TERWEL MELENDEZ
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On August 10, 2003, there was a decision by the Immigration Protection Division dismissing the refugee claim of Rosa Terwel Melendez (applicant), finding that she was not a Convention refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). This is an application for judicial review of that decision.
FACTS
[2] The applicant is a Honduran national. She alleges that she fears for her life and the security of her person if she were to return to her country, because her former common law spouse, a police officer, is looking for her.
[3] The applicant was born in 1978. She had an ongoing relationship with a first common law spouse, Milton Ramon Baide, with whom she had two children, born in 1995 and 1997. In 1997, they separated. In 1998, she began a new relationship with Leonardo Amaya. She moved from her hometown, leaving her children with her parents, to go live with Mr. Amaya in Ceiba, a 10-hour bus ride away from the town in which her parents lived.
[4] In 2001, Mr. Amaya, police officer by profession, became increasingly violent. The applicant described various incidents, and specifically the events of December 16 and December 31, 2001, when Mr. Amaya hit her, humiliated her in front of his fellow police officer friends visiting the home, and threatened her about deciding to leave him. In the beginning of December 2001, the applicant had attempted to file a complaint at the police station. She was advised to keep quiet, in order not to hurt Mr. Amaya's career. After the events of December 31, 2001, when Mr. Amaya allegedly placed a loaded pistol in her mouth and generally manhandled her in front of his friends, the applicant escaped to her parents' home.
[5] In May 2002, four masked and armed men showed up at her house; her father, who told her to go to a neighbour's house, was brutalized by these men, who told him that his daughter had to go to Ceiba, failing which they would bring her there, willingly or unwillingly. Her parents then advised her to leave the country. She left almost immediately.
[6] Her journey to Canada took 25 days. The applicant did not claim asylum in the first two countries that she crossed - Mexico and the United States. When she arrived at the Canadian border, she immediately claimed refugee status.
ANALYSIS
[7] It is well established in the case law that in matters of credibility, the Court will not intervene with a decision of the Refugee Division unless the decision is patently unreasonable, or if the Division, as stated in paragraph 18.1(4)(d) of the Federal Court Act:
. . . based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
[8] On this point, I refer to two passages of decisions by our Court, which make it very clear what role our Court is expected to play in a judicial review of a decision by the Refugee Protection Division based on credibility:
Kanagarajah v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 44 (F.C.T.D.):
[26] It is trite law that the Board is in the best position to make findings of credibility. Findings of fact based on internal inconsistencies and evasive evidence are "the heartland of the discretion of triers of fact" as was stated by the court in Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
Gonzalez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1895:
[4] With respect to questions of credibility, 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 (see 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.)).
[5] Furthermore, as the Federal Court of Appeal has 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 may amount to a finding that there is no credible evidence for that claim.
[9] It therefore must be determined if, considering all of the evidence, the panel's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it .
[10] To support her evidence of Mr. Amaya's existence and the threat that he poses to her, the applicant filed three letters which presumably came from the Honduras: from her mother, from her cousin and from a friend. The three letters arrived in Canada in the same envelope postmarked Houston, Texas. Another similar letter that had not been filed came in an envelope postmarked Miami, Florida. The applicant explained that her mother contacted an agency, Envios Urgentes, located in Honduras. The address of the agency on the envelope is in Houston.
[11] The three letters are very similar. After a short paragraph of well-wishing, they continue in the following words:
[TRANSLATION]
. . . Leonardo is looking for you to take your life, he says that he will never leave you in peace, what he wants is to kill you, it's the only way to become calm. . . .
. . . I am very worried about you because this man is looking for you to take your life and he says he will not rest until he finds you to kill you; . . .
. . . that idiot Leonardo is looking for you to kill you, you know what he says? That he'll find you and kill you, you know he says he will not rest until he finds you to take your life. . . .
[12] The panel bases its decision on the contradictions in the applicant's testimony, and the implausibility of her allegations about her two spouses:
Furthermore, one learns from the claimant's testimony of the birth of a third child, not identified on the PIF, who was born in Canada and whose father is Milton Ramon Baidi. Again, the panel questioned the plausibility of the claimant's allegation, i.e. that, in the meantime, she had had a relationship with Amaya, since at the port of entry she had referred to her initial spouse who is the father of the child conceived and born in Canada. When asked to comment on the implausibility of the events, the claimant could only add that she had again and by chance met her first spouse, Milton Ramon Baidi, the father of her first two children, in a church in Montreal and that she had taken up with him again. The evidence indicates that the spouse in question was a refugee claimant, that his claim was refused and that consequently, he left Canada.
Considering that the claimant brought no further evidence of her relationship with Léonardo Amaya and considering that the allegations adduced in evidence contain serious inconsistencies that rebut the presumption of truthfulness, the panel cannot accept the claimant's explanations and finds that her allegations are not credible.
[13] Further, a review of the decision indicates that the panel read the documentary evidence filed on the Honduras. The finding to the effect that the applicant had not rebutted the presumption that the Honduran State would be able to protect her was not unreasonable. Even if there is still inadequate protection for women in conjugal violence situations, the Honduran State has nevertheless taken and continues to take measures to protect women.
[14] In a recent decision by our Court, Smith v. MCI, July 13,2004, IMM-5332-03, Phelan J. found:
The documentary evidence contained both favourable and unfavourable comments on state protection for abused women. The Panel chose to accept the more recent documentary evidence. The Panel concluded that the Applicant had not availed herself of all of the elements of state protection available to her, including, legal aid and complaints to judicial authorities.
There is nothing patently unreasonable in the Panel's conclusion that the Applicant had failed to prove that state protection was inadequate.
[15] Upon review of the panel's decision, I cannot determine that its decision was patently unreasonable. The inferences drawn are supported by the evidence and the assessment of credibility (an assessment based on the shortcomings in the PIF), the testimony and the evidence. For these reasons, I would dismiss the application for judicial review.
ORDER
THE COURT ORDERS THAT
- the application for judicial review be dismissed;
- there is no question for certification.
"Pierre Blais" Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6753-03
STYLE OF CAUSE: ROSA TERWEL MELENDEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 5, 2004
REASONS FOR ORDER
APPEARANCES:
Oscar Fernando Rodas FOR THE APPLICANT
Sherry Rafair Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Oscar Fernando Rodas FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20040811
Docket: IMM-6753-03
Between:
ROSA TERWEL MELENDEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER