Date: 20060410
Docket: IMM-1419-05
Citation: 2006 FC 406
Ottawa, Ontario, April 10, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JUVINNY BALMORE FLORESGOMEZ
YANETH BEATRIZ CASTILLO CAMPOS
KONNY BEATRIZ FLORES CASTILLO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 3, 2005, wherein it was determined that Juvinny Balmore Flores Gomez (the Applicant or principal Applicant), Yaneth Beatriz Castillo Campos, and Konny Beatriz Flores Castillo (collectively the Applicants) were not Convention refugees or persons in need of protection.
Background
[2] The Applicants are El Salvadoran citizens who base their refugee claim on a fear of persecution by reason of organized criminality.
[3] According to the Applicant's Personal Information Form (PIF), he travelled to Canada with his wife and daughter on June 3, 2001 for a vacation, with no intention to remain. However, after their arrival, the principal Applicant learned of threatening telephone calls received by his father in El Salvador. Although the callers remain unknown, the Applicant surmised that they must have been members of an international crime ring, the Flores gang. The Applicant bases this belief on prior events that occurred in 2000 where the principal Applicant's report to the police had resulted in the arrest of the Flores gang leader. Since the Applicant had no previous enemies in El Salvador, he has inferred that the death threats must have come from the Flores gang.
[4] The Applicant alleges that the Flores gang is well connected with the government, which attributed to their quick release from custody. In his PIF, the Applicant also claimed to be at risk because the Partido Liberal Democratico (PLD), an opposition political party that he and his father belong to, has heavily criticized the government for corruption and links to organized crime. The Applicant surmises that the El Salvador government and criminal gangs may be seeking retribution against him for his political beliefs.
[5] The Applicants arrived in Canada on June 3, 2001 and claimed refugee status on August 18, 2001.
Board Decision
[6] The Board rejected the claims of the Applicants on two broad findings.
(a) State Protection
[7] Firstly, the Board found that the Applicants had failed to rebut the presumption of state protection. The Board accepted that car thefts and the sale of stolen cars was probably a regular occurrence and referred to documentary evidence that established a high level of organized crime in El Salvador. However, the Board also noted that El Salvador is a constitutional democracy that respects human rights, with a government that is willing and able to protect its citizens, has effective control of its territory, and has military and civil authorities. The Board placed "considerable weight" on documents showing that the government is cracking down on organized crime. The Board concluded that state protection would reasonably be forthcoming and the Applicant was required to approach the authorities in his home country.
[8] The Board also noted the absence of any mention of the Flores gang in reports or criminal records from El Salvador. The Board inferred that the Flores gang was of average character for an organized criminal enterprise and should be subject to the police crackdown like any other gang. The Board rejected the Applicant's assertion that the Flores gang was more difficult to reign in than gangs such as the Mara Salvatrucha. The Board concluded that the Applicant had not rebutted the presumption of state protection with "clear and convincing" evidence.
(b) Credibility
[9] Secondly, the Board found that the Applicant's evidence was not credible or trustworthy; in short, that the Applicants had not established the subjective element of their claim. The Applicant suggested that the Flores gang was in collusion with the government, since they had been released one month after being arrested in November 2000. The Board did not accept this inference, as there were many possible explanations for the release, such as bail or insufficient evidence. The Board found it improbable that the gang would wait until seven months after their arrest to seek to harm the Applicant, and, even then, not do so until the Applicant was safely out of the country.
[10] The Board took notice that the Applicant had also based his refugee claim on a second ground in his PIF: his family's involvement in the PLD party. At the hearing, the Applicant stated that "there is no problem with politics." The Applicant explained that while he initially thought that his problems were related to his father's political activity, he had since decided that they only emanated from the gang. The Board considered this to be an inconsistency and drew an adverse inference from that the fact that this reason for claiming refugee status had been included in the PIF, which had been written nine months after the threatening phone calls had been received.
[11] The Board stated that the subjective component of a well-founded fear was lacking, and went on to consider that the Applicant's desire for employment opportunities in Canada was his true reason for making a claim. The Board stated that "[h]e did, after all work illegally in the USA for 4 years." The Board ruled that this was an inappropriate motive for pursuing a claim under refugee law.
Issues
[12] The issues raised by the Applicant are the following:
- Did the Board deny the Applicants the right to a fair hearing by following the order of questioning set out in Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (Guideline 7)?
- Did the Board err in concluding that the Applicants had not rebutted the presumption of state protection?
- Did the Board err in its finding that the Applicants had failed to establish the subjective component of their claim, on the basis that it misapprehended or ignored evidence before it?
- Did the Board err in concluding that the principal Applicant had worked illegally in the United States for four years?
[13] Guideline 7 was the subject of the decision of this Court in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16. Following this decision, this judicial review and a number of others were consolidated for purposes of hearing and determining the Guideline 7 issue (Order dated February 20, 2006). That hearing was held before Justice Mosley on March 7 and 8, 2006 (the consolidated hearing). Accordingly, the hearing before me dealt exclusively with the three other non-Guideline 7 issues identified above.
Analysis
1. Did the Board err in concluding that the Applicants had not rebutted the presumption of state protection?
[14] The Board's analysis of the objective aspects of the claim are rooted in state protection issues, which recently have been reviewed on a reasonableness simpliciter standard (see Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58, 2005 FC 193 at paras. 8-12). However, in this case, the Applicants allege that the Board ignored material evidence. Regardless of the standard of review, failure to have regard for the evidence is a ground for setting aside the decision (s. 18.1(4)(d), Federal Courts Act, R.S.C. 1985, c. F-7).
[15] The Applicants argue that the Board ignored documentary evidence that supported the position that state protection was not forthcoming in El Salvador.
[16] As a general proposition, the Board is entitled to prefer some documentary evidence above others (Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004 FC 504 at para. 18) It is also trite law to say that the Board need not refer to every piece of evidence before it (ibid.). However, if the Board fails to discuss important, contradictory evidence then this Court may conclude that the Board ignored or misapprehended key facts and came to an erroneous decision (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) at para. 17).
[17] In the case at hand, the Applicants point to a series of documents that report the following:
- a failure of the government to aggressively address, eliminate, or prevent corruption within its ranks;
- a claim that the government may have been involved in death threats against its own Human Rights Procurator;
- the rising involvement of the national police (PNC) in criminal activity; and
- the lack of access to information rights and the homogenization of media in a sector with close ties to government, which both may suggest that information critical of the government may be hard to find.
[18] The documents referenced by the Applicants are general in nature and not specifically related to organized criminality. While the above documents are not individually dealt with by the Board, the Board's reasons demonstrate that it appreciated and understood their contents. I am not persuaded that the Board ignored either the documents or their contents.
[19] Raising a point for the first time in oral submissions, the Applicants drew my attention to one passage of the Board's decision that they submit is clearly incorrect and that demonstrates that the Board ignored evidence submitted by the Applicants. The alleged error is contained in the following paragraph which I set in full in order that the comment is read in context.
Any government that makes any claim to the democratic value and protection of human rights "cannot guarantee the protection of all its citizens at all times". The claimants have established that denunciations (or reports) to the [police] have been made. He also clearly shows that the Salvadoran state maintains a fairly concise record of its criminal proceedings. It would thus be reasonable to expect mention of the Flores gang to appear among the various reports mentioning gangs in El Salvador. No such reference is made. From this, the Board has concluded that this "gang" is little different from any other gang operating in El Salvador and would be subject to the same police actions as any other crime ring. The Board therefore rejects the principal claimant's testimony that the Flores gang is significantly more difficult for the authorities to control than the various Maras gangs discussed in the documents. [emphasis added]
[20] The Applicants pointed out that they had submitted "documents" that mention the Flores band of car thieves: specifically, they submitted two online articles from La Prensa Grafica that name this group. Thus, they argue, the Board erred by stating that no reference was made to the Flores band in the documentary evidence.
[21] I first note that the Applicants have had a number of opportunities to raise this alleged error and have not done so until oral argument before me. The lateness of this submission is, in my view, sufficient grounds to decline to consider it. But, in any event, I do not agree. When read in its entirety, the paragraph cited is referring, in my view, to a specific subset of documents. In particular, the Board is noting reports (or denunciations) made to the police and the Salvadoran state reports of criminal proceedings. Read in context, I conclude that the Board was not referring to all the documentary evidence in the record.
[22] Even if the Board did intend to include all of the documents filed in the proceeding and erred by failing to acknowledge the two news articles submitted by the Applicants, any failure would be, in my view, unhelpful to the Applicants. This is because each of these articles cites examples of the success of the police in arresting members of the Flores gang. The articles support the conclusion of the Board on the issue of state protection.
[23] In conclusion, I am not persuaded that the Board ignored any important, relevant evidence. The Board's conclusion is in accordance with the totality of the evidence. The Board acknowledged that state protection was not perfect in El Salvador, but focussed on the willingness of the state to eradicate organized criminal activities and positive gains that had been made. The fact that some corruption exists is not out of line with that conclusion. I cannot describe the Board's decision on state protection as unreasonable, or perverse or capricious, or without regard to the evidence.
[24] A reasonable conclusion by the Board that the Applicants had not rebutted the presumption of state protection is dispositive of the Applicants' claim. Nevertheless, in the event that I am wrong on this issue, I will consider the other questions raised by the Applicants.
2. Did the Board err in its finding that the Applicants had failed to establish the subjective component of their claim, on the basis that it misapprehended or ignored evidence before it?
[25] The Applicants raise a number of concerns with respect to the Board's conclusion that they had not established the subjective element of their claim. In short, the Board had a number of problems with the credibility of the principal Applicant. I will consider each of those concerns that appear to me to require a response. I have chosen not to deal with two of the arguments that are clearly without merit: these are related to the number of typographical errors in the Board's reasons and to the "tone" of the decision.
[26] Credibility findings of the Board should be reviewed on a standard of patent unreasonableness (Sinan v. Canada (Minister of Citizenship and Immigration), 2004 FC 87, [2004] F.C.J. No. 188, at para. 8). The Board is in the best position to gauge credibility and implausibility and to draw the necessary inferences (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). Nevertheless, a decision will be set aside where the Board failed to have regard for the evidence or misapprehended the nature of the claim.
(a) Complicity of Flores band with the El Salvadorgovernment
[27] First, the Applicants submit that the Board erred in drawing an adverse inference from the Applicant's claim that the El Salvador government was complicit in the quick release of the Flores gang members, following their arrest in November 2000. The Applicants say that the Board ignored the Applicant's testimony that the gang members had been absolved of their crimes, which is indicated by the Board's comment that some explanations for the early release could be bail or insufficient evidence. It is helpful, I think, to reproduce a portion of the hearing transcript in order to appreciate the nature of the Applicant's testimony.
[Certified Tribunal Record at pp. 311-312]
Q. [Board]: And so what more would you expect from the police?
A. [Applicant]: I don't know what I can expect from them, because they are set free again.
Q. Were they - did they [the gang members] go to trial?
A. Yes, but they were absolved.
Q. Mm-hmm. For what reason?
A. This is a big organization that - how could I tell you? They have internal elements of individuals within the government.
Q. Well, was there a trial?
A. Supposedly, newspapers say that there was a trial, but I don't know to what extent. I don't know.
[28] The full context of the Applicant's response is, I think, quite telling. Without engaging in a weighing of this evidence, I think it fair to say that it was clear on the face of the Applicant's testimony that he did not have any personal or precise knowledge of what happened at the trial. Given that this was the case, I cannot say that the Board's suggestion that "bail" might have been a reason for the early release indicates a failure to appreciate the Applicant's testimony.
[29] The Applicant also contends that the Board failed to take into account documentary evidence showing the existence of "judicial corruption." However, the evidence is brief and quite general in nature. The fact that some corruption may exist does not, by itself, conclusively establish state complicity in the trial of the Flores gang members. Therefore, I cannot conclude that the Board was obliged to discuss this specific document. I note that, in fact, the same document states that "a general reform of the judicial system is getting underway, and some corrupt and/or unqualified judges have been removed." Overall, this evidence is not "so important and vital that failure to acknowledge it may constitute a reviewable error" (Johal v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1760 at para. 10 (T.D.)).
[30] The Applicants submit that the Board ignored the fact that the gang members had been arrested a second time, in January 2001, when it found it improbable that the gang members would wait seven months to seek revenge on the principal Applicant. The Applicant testified that even though he had only been involved in the first arrest, the gang members may have blamed him for the second arrest as well. In my view, the second arrest does not seem relevant, and I am also not persuaded that the Board ignored this information. At the hearing, the Board asked the Applicant why the second arrest would be relevant and described the Applicant's explanation as speculation (Certified Tribunal Record at 311-313). It seems clear that the Board considered the alleged revenge motivations to stem from the first arrest only, which was not an unreasonable finding. While it would have been preferable for the Board to deal with the Applicant's explanation directly, the Board's account of the delay being seven months long is consistent with the evidence.
(b) Inconsistency with respect to the connection of political threats to the claim
[31] The Applicants submit that the Board erred by drawing an adverse inference from the inconsistency between the principal Applicant's PIF and his testimony. In essence, the Applicants argue that between the time of drafting his PIF and attending the hearing, his beliefs changed. Originally he had thought that his political affiliations and those of his father were connected to the threats made against him, but sometime before the refugee hearing he dismissed this possibility.
[32] The Board acknowledged this explanation and did not find it reasonable. In my opinion, it was open to the Board to find that this inconsistency (and it is plainly an inconsistency) undermined the principal Applicant's credibility. The Board is entitled to draw the necessary inferences from inconsistencies, and, in this case, it was not unreasonable to make an adverse finding. The change in the Applicant's beliefs demonstrated his lack of precise knowledge regarding the key details of his claim; it indicated that the Applicant was relying on speculation.
(c) Failure to refer to denouncements by family
[33] The Applicants point out reports made by the Applicants' families to the police; these are referred to as denouncements. The Applicants submit that the Board erred by failing to refer to these important documents that support the subjective element of their claim.
[34] There are four denouncements contained in the Certified Tribunal Record. Having examined each of them, I am not persuaded that they are "directly on point" as asserted by the Applicants. One of the denouncements (and a second which is tied to the first) refers to threats made because of the political beliefs of the family member. As the principal Applicant testified, his problems had nothing to do with his father's political opinions. Accordingly, these denouncements have little relevance to the Applicants' claim. The other two denouncements refer to a car theft; there is no indication in the denouncements that the Flores band was responsible. Accordingly, given the lack of relevance of these documents to the Applicants' claim, the Board's failure to refer to them is not an error.
(d) Misapprehension of claim
[35] For the first time in oral argument, the Applicants raised the argument that the Board misapprehended the claim of the Applicants. In their submission, the Board considered that the fear was of a "gang" and assessed the evidence on that basis. In their view, however, the fear is of a very specific group that is involved in an international ring of car thefts. They point to one place in the transcript where the principal Applicant attempted to explain this to the Board. This argument should have been made earlier in these proceedings and, on that basis alone, should be dismissed. However, it also fails on its merits.
[36] A complete response to this argument is contained in the Application Record where no such distinction is made by the Applicants. Throughout his affidavit, the principal Applicant makes numerous references to the "Cuestas Flores Gang", to alleged threats by "gang members" and to police problems in controlling the "gangs". Submissions contained in the Application Record similarly speak of "gangs". Even in the Applicants' Further Memorandum of Law and Argument there is no reference to an international ring of car thieves as being different than a "gang". If the Board misconstrued the basis of the claim, I would have to conclude that the Applicants did as well!
3. Did the Board err in concluding that the principal Applicant had worked illegally in the United Statesfor four years?
[37] Finally, the Applicants submit that the Board erred by stating that the principal Applicant worked illegally in the United States for four years. The Respondent concedes that this is clearly a mistake but maintains that it is not a material error.
[38] I agree that the Board's statement was an error. However, this error does not undermine the decision. Within the reasons, this error is situated after the Board had completed its analysis and stated its conclusions regarding both the objective and subjective components of a well-founded fear. After considering the elements of the claim, the Board engaged in a discourse on its view of the reasons why these Applicants had come to Canada. I am not certain why the Board felt obliged to engage in this speculation after carrying out its analysis of the claim; this was unnecessary for the Board's conclusions. Nevertheless, this error was not a material basis for the Board's decision and is, therefore, not sufficient to warrant overturning the decision.
Conclusion
[39] In sum, the Board did not err, either with respect to its determination on state protection or on its conclusion that the Applicants had failed to establish the subjective component of their claim. On these non-Guideline 7 issues, the application would be dismissed. No questions related to the non-Guideline 7 issues were proposed. None will be certified.
"Judith A. Snider"
____________________________
Judge
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