Date: 20041028
Citation: 2004 FC 1521
Toronto, Ontario, October 28th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JULIO CESAR GIRALDO SOTO
DIEGO MAURICIO GIRALDO ROMERO
GLADYS PATRICIA ROMERO OSPINA
JUAN PABLO GIRALDO ROMERO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Julio Cesar Giraldo Soto, his wife Gladys Patricia Romero Ospina and their two sons Diego Mauricio Giraldo Romero and Juan Pablo Giraldo Romero are Colombian citizens. The family arrived in Canada on February 25, 2003 and claimed refugee protection based on a well-founded fear of persecution at the hands of FARC, a major guerilla force in Columbia. On November 7, 2003, the Refugee Protection Division of the Immigration and Refugee Board (RPD) denied the claims. The family requests that I set aside the decision and send their claims back for redetermination before a different panel.
[2] Mr. Soto worked as an assistant manager in a Colombian government bank from 1988 until 2000. He claimed that, in November, 1999, he was approached by members of FARC and asked to facilitate illegal transactions in violation of the bank's reporting requirements. Mr. Soto initially refused, but when threatened at gunpoint, he complied. Later, in a telephone call, someone from FARC thanked him and told him that he would be required to provide similar assistance in the future.
[3] Mr. Soto said that, in January 2000, he arranged for a transfer to a bank in another city. He claimed that, approximately five months later, he received another call from FARC asking him if he was trying to run away from them. He was informed that his assistance would be sought wherever he was and that someone would be over. The family went into hiding that night. Mr. Soto resigned without telling his employer the reason. He and his family left for the United States, on valid visitors visas, in August, 2000. They extended their status in the United States until January, 2002. They remained in the United States illegally until February, 2003.
[4] The applicants argue that the RPD was patently unreasonable in making a negative finding of credibility based on the discrepancies in the applicant's testimony. In its scrutiny of the "flow" of Mr. Soto's personal information form (PIF), the RPD failed to consider the fact that the PIF was prepared with the assistance of a Spanish-English interpreter and that subtleties such as the flow of language might be lost in the translation process. The RPD was, according to the applicants, over vigilant.
[5] In my view, the board's finding was open to it. Mr. Soto claimed that he told his wife about the incident but he did not tell anyone at the bank. In his PIF, he stated that he "told nobody at the bank". At the hearing, he submitted a document from an individual, who described himself as an employee of the bank, who stated that Mr. Soto told him of the FARC visit and threats. When confronted with the inconsistency, Mr. Soto explained that, in his PIF, he meant to say that he never told any of his superiors at the bank about the incident with FARC. The board rejected his explanation, given the flow of the paragraph in the PIF. The paragraph reads:
When I got home that evening, I was very worried and preoccupied and I told my wife what had happened. I didn't know if I should tell my bank manager or not, but decided that it was too dangerous, because he might go to the police and this might anger the FARC and result in them harming my family. So I told nobody at the bank.
The RPD also decided that, because the document from the employee was not sworn, it would attach no weight to it in assessing the credibility of Mr. Soto's allegations.
[6] There is nothing in the record to indicate translation or interpretation problems. It was open to Mr. Soto to amend his PIF - he did not. Counsel, at the outset, indicated a "matter of interpretation which I can address in the examination-in-chief", but a review of the transcript reveals no reference to translation or interpretation difficulties. Thus, there is no evidentiary basis - in the tribunal record or in the application record - to establish "linguistic subtleties" lost in the translation of the narrative. The RPD was entitled to rely on the translation of Mr. Soto's narrative. It considered his explanation for the discrepancy, but did not accept it. That was its prerogative. The fact that someone else might have seen it differently is not the issue. I agree with counsel that the paragraph in question was open to two interpretations. The fact that the board chose one of the two does not make its choice patently unreasonable nor does it indicate over vigilance. It is not for the court to substitute its opinion for that of the RPD.
[7] The applicants also submit that, if the negative credibility finding is determined to be unreasonable, the only issue left to sustain the decision is the family's delay in seeking asylum or refugee protection. They claim that this, in and of itself, cannot be the basis for a negative determination: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).
[8] Since I have already concluded that the RPD did not err in arriving at its negative credibility finding, I need not address this issue. I note, however, that in addition to the length of the delay, the board also considered the fact that by January, 2002, Mr. Soto and his wife would have known that there was no hope that the United States would grant special status to persons from Columbia. The board considered Mr. Soto's level of education, his previous responsibility in Columbia, and his wife's knowledge in arriving at its finding that the years of delay in seeking protection in the United States and Canada cast great doubt upon the credibility of the applicants' alleged fear of persecution. It is for the board to determine the significance of the delay on the basis of the evidence before it and its assessment of the applicants.
[9] In the result, it has not been demonstrated that the decision of the RPD is unreasonable. Consequently, the application for judicial review must be dismissed. Counsel did not suggest a question for certification nor does one arise in this matter.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9473-03
STYLE OF CAUSE: JULIO CESAR GIRALDO SOTO
DIEGO MAURICIO GIRALDO ROMERO
GLADYS PATRICIA ROMERO OSPINA
JUAN PABLO GIRALDO ROMERO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 28, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Mr. Michael Korman
FOR THE APPLICANT
Mr. Tamrat Gebeyehu
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Korman
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041028
Docket: IMM-9473-03
BETWEEN:
JULIO CESAR GIRALDO SOTO
DIEGO MAURICIO GIRALDO ROMERO
GLADYS PATRICIA ROMERO OSPINA
JUAN PABLO GIRALDO ROMERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER