Date: 20040406
Docket: IMM-632-03
Citation: 2004 FC 529
Ottawa, Ontario, April 6, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
HILARIO MANILAY REYNA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Hilario Reyna is 49 years old. He is a citizen of the Philippines, as well as a husband and the father of four children. Mr. Reyna suffers from a mental disability. He claimed refugee protection, alleging that he had been targeted for extortion by corrupt politicians and members of a criminal organization, because of his limited mental capacity. He further asserts that he would be in serious danger if he were compelled to return to the Philippines.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected the claim, finding that Mr. Reyna failed to provide credible evidence that he was either a Convention refugee or a person in need of protection. He now seeks to challenge that decision, submitting that the Board's credibility findings were patently unreasonable. He further asserts that the Board erred in finding that he was the victim of criminal activity, and that there was no nexus between the hardship that he had encountered in the Philippines and a Convention ground.
Background
[3] Although I have not been provided with a specific diagnosis, it appears from the record that Mr. Reyna is significantly developmentally delayed. He appeared at his refugee hearing, but was unable to testify. His sister Marlyn was appointed as his Designated Representative, and testified on his behalf.
[4] According to Marlyn Reyna, her brother owned a farm in Batangas, in the Philippines. Because of his disability, Mr. Reyna was able to perform only a limited range of farm duties, carrying out these duties under the supervision of a neighbour.
[5] Due in large part to his mental disability, Mr. Reyna was taken advantage of by the local mafia and by corrupt politicians. Mr. Reyna was threatened on numerous occasions, and was told that his entire family would be killed if he did not comply with the extortionists' demands. In 1999, Mr. Reyna was persuaded to borrow large sums of money from political figures. He was forced to sign loan documents, and to turn the borrowed funds over to politicians and mafia figures. The ultimate goal of these individuals, Ms. Reyna says, was to take over Mr. Reyna's farm, and he was in fact ultimately forced to surrender ownership of the property. The local police were allegedly involved in the scam, and would not come to Mr. Reyna's aid.
[6] Mr. Reyna's family, none of whom currently reside in the Philippines, were contacted by a neighbour, and were made aware of what was going on. Eden Reyna Ong, another one of Mr. Reyna's sisters, went to the Philippines to try to resolve the situation, although she was unsuccessful in doing so. Ms. Ong then took her brother and his immediate family to the remote Philippine island of Mindano. Some time after arriving in Mindano, Mr. Reyna's wife reportedly spotted one of the extortionists from Batangas.
[7] Because of the fear that the extortionists were pursuing Mr. Reyna, his family brought him to Canada in July of 2000. He applied for refugee protection in April of 2001. His wife and children stayed behind in Mindano.
The Board's Decision
[8] The Board had serious concerns with respect toMarlyn Reyna's credibility, finding that her testimony was "...replete with inconsistencies, omissions and lacked specificity". As a result, the Board found that Mr. Reyna had failed to provide credible evidence to support his claim.
[9] The Board made a number of factual findings that are in issue in this application:
1. The Board found that Ms. Reyna's testimony with respect to the status of the legal proceedings initiated by the family relating to the sale of the family farm was inconsistent and 'cloudy'.
2. The Board found it strange that Mr. Reyna's family had not sought replacement assisted living for Mr. Reyna and his family in Mindano.
3. The Board did not find it credible that, having defrauded Mr. Reyna of all of his property and money, the extortionists would pursue him to Mindano or anywhere else.
4. The Board found that Ms. Reyna's description of the work that Mr. Reyna performed on the family farm implausible, in light of the Board's own observations with respect to the extent of Mr. Reyna's disability. In particular, the Board observed that Mr. Reyna had to be told to take off his coat, when the hearing room became warm.
[10] The Board also concluded that Mr. Reyna's application did not engage a Convention ground. In the Board's view, Mr. Reyna was a victim of crime, and not the subject of persecution on a ground enumerated in the Refugee Convention.
Issues
[11] Mr. Reyna raises two issues in this application:
1. Did the Board err in its determination that Ms. Reyna was not credible, by misapprehending, misconstruing or mis-stating the evidence? and
2. Did the Board err in determining that there was no nexus between the hardship suffered by Mr. Reyna and a Convention ground?
Analysis
Did the Board err in its determination that Ms. Reyna was not credible, by misapprehending, misconstruing or mis-stating the evidence?
[12] Insofar as the Board's credibility findings are concerned, the Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 40, and Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[13] I am not persuaded that the Board's credibility findings were patently unreasonable.
[14] I have reviewed the transcript of Ms. Reyna's testimony with respect to the status of the legal proceedings in which the family was attempting to recover the family farm. It is perfectly clear to me why the Board found Ms. Reyna's testimony in this regard to have been unsatisfactory. Indeed, the Board's choice of the word 'cloudy' to describe the situation comes directly from Ms. Reyna's own testimony.
[15] Mr. Reyna also submits that consideration should be given to the fact that Marlyn had not been in the Philippines during this time, and was relying on information provided by another family member with respect to the status of the legal proceedings. Be that as it may, the burden is on Mr. Reyna to provide satisfactory evidence to support his claim.
[16] Despite Ms. Reyna's claim that Mr. Reyna needed assistance, there was no evidence before the Board that the family made any effort to obtain assistance for Mr. Reyna in Mindano. As a consequence, the Board's finding on this issue was appropriate.
[17] Similarly, I cannot say that the Board's finding that it was implausible that the extortionists would pursue Mr. Reyna to Mindano, having already depleted his assets, was patently unreasonable.
[18] Mr. Reyna's final challenge to the Board's credibility assessment relates to its finding with respect to the extent to which Mr. Reyna was impaired by his disability. The Board member had the opportunity to observe Mr. Reyna in the hearing room, and to determine whether the description of his farm responsibilities offered by Ms. Reyna was plausible, having regard to Mr. Reyna's apparent level of disability. In these circumstances, I cannot say that the Board's finding in this regard was patently unreasonable.
Did the Board err in determining that there was no nexus between the hardship suffered by Mr. Reyna and a Convention ground?
[19] Having concluded that the Board's finding that Mr. Reyna failed to provide credible evidence to support his claim was not patently unreasonable, it is unnecessary to address the arguments related to whether or not the claim engaged a Convention ground.
Certification
[20] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-632-03
STYLE OF CAUSE:
HILARIO MANILAY REYNA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 1, 2004
Reasons for Order and Order : Madam Justice Mactavish
DATED: April 6, 2004
APPEARANCES:
Alex Billingsley FOR PLAINTIFF / APPLICANT
Catherine Vasilaros FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Cintosun & Associate FOR PLAINTIFF/APPLICANT
Toronto
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General RESPONDENT