Date: 20040402
Docket: IMM-1063-03
Citation: 2004 FC 497
Vancouver, British Columbia, Friday, the 2nd day of April, 2004
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
CAROLINA LORETO ORTIZ DIAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Ortiz Diaz is a citizen of Chile who alleges that she was abused by her father in Chile. She brings this application for judicial review from a negative decision of a panel of the Refugee Protection Division of the Immigration and Refugee Board ("Panel"). The Panel found that she had provided insufficient credible or trustworthy evidence for the Panel to be able to find that there is any serious possibility that Ms. Ortiz Diaz would be persecuted for a Convention reason if she should return to Chile. The Panel also found that there was insufficient credible or trustworthy evidence on which the Panel could find that there is any serious possibility that Ms. Ortiz Diaz is a person in need of protection. The Panel also concluded that there was reasonable state protection available to Ms. Ortiz Diaz in Chile and that she had an available and reasonable internal flight alternative in Chile.
[2] With respect to the Panel's finding of credibility:
i) The Panel noted Ms. Ortiz Diaz' demeanour at her hearing. Contrary to her testimony that she suffered from low self-esteem because of her father's intimidation and abuse, Ms. Ortiz Diaz presented herself in a forthright manner which the Panel found was not indicative of the inhibiting characteristics she described. The Panel noted that her past achievements in Chile were not consistent with the low self-esteem she described. In this regard, Ms. Ortiz Diaz graduated with an engineering degree from the Catholic University of Chile. Following graduation she worked as a project engineer and project manager for the national telephone company of Chile. Once in the workforce, Ms. Ortiz Diaz was promoted relatively quickly to successively responsible positions.
ii) The Panel drew a negative inference from the fact that Ms. Ortiz Diaz' testimony that her father had beaten her when she was younger was not referred to in her Personal Information Form ("PIF"). While she explained that the reason for this omission was that she first remembered the beatings when she was going through counselling in Canada, Ms. Ortiz Diaz made no attempt to amend her PIF to contain this information prior to her oral hearing or at the commencement of the oral hearing when she confirmed that the contents of her PIF were true and correct.
iii) The Panel also drew a negative inference from Ms. Ortiz Diaz's testimony that in April 1998 she was late meeting her father at his office and that in his anger her father produced a gun and said he was going to kill her. This testimony embellished her statement in her PIF where she simply stated that her father took a gun out and waved it around. When asked to explain why she omitted to say in her PIF that her father had made a direct threat to kill her, she explained that she realized the error only when she was reviewing the PIF at her lawyer's office. Again, the Panel found that this did not explain why neither Ms. Ortiz Diaz nor her lawyer attempted to correct her PIF prior to the hearing.
iv) The Panel noted that after the alleged death threat received from her father Ms. Ortiz Diaz came to Canada in September of 1998 to visit her mother. She did not seek refugee protection in Canada at that time, but rather returned to Chile a month later. When asked why she returned to Chile notwithstanding the death threat, Ms. Ortiz Diaz stated that at the time she had just sent out her resume and she wanted to get a job in Chile after having recently graduated from university. The Panel found this was implausible behaviour for a person who genuinely feared her father and had been subjected to a recent death threat.
v) The Panel commented upon Ms. Ortiz Diaz's evidence that she had telephoned her father and told him that she was leaving for Canada. When asked why she would call her father and tell him this if she truly believed him to be a threat to her safety, Ms. Ortiz Diaz explained that she could not tell him that she intended to leave Chile permanently. When pressed further for an explanation as to why she would risk his reaction, Ms. Ortiz Diaz stated that she told her father that she was coming to Canada for a visit and so she wanted to return to her father some of his furniture which she had been using. The Panel found that this explanation did not make sense. If Ms. Ortiz Diaz had told her father that she was going to Canada for a brief visit, the return of his furniture would be inconsistent with a brief visit.
vi) The Panel went on to note that Ms. Ortiz Diaz then provided another explanation as to why she told her father she was leaving on a trip to Canada. That second explanation was to prevent him from coming unexpectedly to her apartment and finding her packing to leave. However, the evidence also established Ms. Ortiz Diaz's apartment had controlled access with an electronic intercom and a doorman.
vii) On her arrival in Canada, Ms. Ortiz Diaz did not advise immigration authorities of her intention to make a refugee claim. Ms. Ortiz Diaz waited three weeks before she made her refugee claim. The Panel found this delay inconsistent with a subjective fear.
[3] In her written argument, Ms. Ortiz Diaz raises three main grounds for challenging the decision of the Panel.
[4] First, she argues that the Panel erred in finding there was available state protection. Ms. Ortiz Diaz asserts that the Panel failed to consider that her father was well-connected to the police.
[5] I am not persuaded the Panel so erred. The Panel expressly considered her evidence and found it unsatisfactory because Ms. Ortiz Diaz provided evidence of any unusual influence or power. The Panel found that even if her father had friends among the police, this did not mean that those connections would prevent or inhibit state authorities from impartially trying to help her if she sought their assistance.
[6] Second, Ms. Ortiz Diaz argues that while she was professionally successful, this does not mean that she can obtain state protection. However, the Panel considered the documentary evidence before it which suggested that Chile has attempted to deal with gender violence by enacting criminal laws and by implementing programs against such abuse. The Panel found that reasonable state protection was available. I am satisfied that this was a conclusion reasonably open to the Panel on the documentary evidence before it.
[7] Third, and finally, Ms. Ortiz Diaz says that when the Panel found she delayed in claiming refugee status, the Panel did not properly take into account the fact that she was confused and required counselling. I am not satisfied that this explanation was provided to the Panel. While Ms. Ortiz Diaz testified that she was in therapy, she did not state that this impacted upon her delay or that her confusion caused any delay. The Panel cannot be faulted for failing to consider an explanation not given to it.
[8] In oral argument, Ms. Ortiz Diaz attempted to explain her failure to have included information in her PIF about the beatings and death threat by stating she received poor legal advice. This is not an argument supported by any evidence. At the time of the hearing before the Panel, Ms. Ortiz Diaz was represented by experienced counsel. The transcript reflects that at the beginning of the hearing she was offered a full opportunity to make any corrections or changes to her PIF and she did not. In my view, the findings with respect to the omissions from the PIF were reasonably open to the Panel.
[9] In sum, I am satisfied that there were ample grounds upon which the Panel could properly conclude that Ms. Ortiz Diaz had failed to establish her claim with sufficient credible or trustworthy evidence. I have listed the grounds given by the Panel for its conclusion that there was insufficient credible or trustworthy evidence upon which Ms. Ortiz Diaz' claim could succeed. In my view, each was properly grounded in the evidence and none could be said to be patently unreasonable
[10] Finally, I note that no challenge is made by Ms. Ortiz Diaz to the conclusion of the Panel that she has a viable internal flight alternative in any place in Chile other than Santiago. This conclusion is fatal to her claim.
[11] For these reasons, the application for judicial review will be dismissed.
[12] Neither party suggested certification of a question and I am satisfied that no question arises on this record.
Page: 7
ORDER
[13] THIS COURT ORDERS THAT:
The application for judicial review is dismissed.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1063-03
STYLE OF CAUSE: CAROLINA LORETO ORTIZ DIAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 30, 2004
REASONS FOR ORDER AND ORDER: DAWSON J.
APPEARANCES:
Ms. Carolina Loreto Ortiz Diaz for Applicant
On her own behalf
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Ms. Carolina Loreto Ortiz Diaz for Applicant
Richmond, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General for Canada