Friday, May 06, 2011

Becerra Vazquez–cumulative errors in assessing credibility

Becerra Vazquez v. Canada (Citizenship and Immigration), 2011 FC 9 (CanLII)

Judge: Justice Pinard

Date heard: December 2, 2010

Date decided: January 6, 2011

Counsel for Becerra Vazquez: Me Stephen Fogarty

Counsel for Minister: Ms. Sara Gauthier (student-at-law), Me Evan Liosis

The Applicant was a citizen of Mexico who worked for a newspaper. Although not a reporter, he was sent to cover a secret meeting between the Secretary-General of Guanajuato and land developers. He was discovered and threatened. A complaint was made to the Mexican Human Rights Commission. After the paper published the story, he was the victim of attempted murder, and tried to report it to the police but they did not come. Doubting the efficacy of the police, he fled to Canada (paras. 2-4).

The Applicant spoke little English when he arrived in Canada, but at the Port of Entry (POE) he was questioned without an interpreter (para. 4). The POE interview notes state that he was a reporter (para. 4).

The RPD’s decision to refuse the Applicant’s claim was based on a finding of lack of credibility, based on five points:

  1. The Applicant testified that his job was “surveiller le contenu des éditoriaux” but he lacked understanding of that position as the RPD understood it (para. 7).
  2. The POE notes state that the Applicant said he was a reporter, but in testimony before the RPD the Applicant stated that he was not a reporter per se but rather involved in the production of this problematic article (para. 8).
  3. The RPD rejected a letter from the paper stating that the Applicant had worked for them for five years on the basis that it was submitted just prior to the hearing and that fraudulent documents were easy to obtain in Mexico (para. 9).
  4. The RPD rejected the Applicant’s testimony that he worked 40 hours a week at the newspaper while pursuing a university degree (para. 10).
  5. The RPD took issue with the Applicant’s version of events after the murder attempt, namely, why he had not informed his employer and why he had bothered to inform the police at all if he did not trust them; it did not believe his testimony that he was in shock at the time (para. 11).

Justice Pinard found that the RPD had interpreted the Applicant’s job description too narrowly, and therefore had erred in doubting the Applicant’s credibility on the basis of his alleged lack of knowledge of his stated profession (paras. 17-18).

Similarly, Justice Pinard found that the RPD had placed too much weight on the specific job title cited by the Applicant in his POE notes, and therefore on doubting his credibility due to an alleged discrepancy (paras. 19-21).

Regarding the letter from the newspaper, Justice Pinard found that that RPD’s rejection of it was marred by circular logic (paras. 22-25):

The evidence relied upon to discredit the letter was the applicant’s lack of credibility and therefore the likelihood that he had obtained the letter fraudulently, and the applicant was also found not to be credible because he had no corroborative evidence once the letter was discredited. I find this to be unreasonable logic on the Board’s part, especially where the information in the letter was easily verifiable (para. 25).

Regarding the RPD’s finding that the Applicant was not credible regarding his working while pursuing a university degree, Justice Pinard did not find that the finding was unreasonable in and of itself, but in combination with the other flawed findings on credibility, the RPD’s conclusions on this point were “troubling” (paras. 26-27).

Similarly, regarding the RPD’s finding that the Applicant’s testimony regarding his actions following the murder attempt further impugned his credibility, Justice Pinard found that this was not a freestanding error, but that “the other three errors that I have identified in the Board’s credibility findings persuade me that the Board’s overall conclusion regarding the applicant’s credibility was tainted.” (paras. 28-30).

JUDICIAL REVIEW ALLOWED

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