Yada v. Canada (Minister of Citizenship and Immigration), docket IMM-4912-96

Date: 19980116

Docket: IMM-4912-96

BETWEEN:

     ROSA EMILIA CARDOZA YADA and

     VICTOR LOPEZ CAMPOS

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.

[1]      This is an application for judicial review of, and for an order setting aside, the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "panel"), dated December 6, 1996, whereby the applicants were found not to be Convention refugees.

[2]      The panel reached its decision because it found the evidence of the applicants was not credible in light of implausibilities identified by the panel. Further, it found that, even if the applicants' evidence was credible, conditions within El Salvador, the country from which they had come to Canada, were such that it was not established there is a reasonable chance they would be persecuted if they were to return to El Salvador, their native country.

[3]      Both applicants claim to fear that if they were to return they may be killed by death squads. They were both senior law students acting as defence counsel, as they were permitted to do, to three students who were charged with kidnapping one Dabaub, and two others. The applicants, though relatively inexperienced, took the case because of its high profile and their concern for the accused students. After filing notice of their role as counsel, they claim Dabaub approached them and asked that they withdraw from defending the case, otherwise they risked being branded by him as accomplices of the defendants. They did not withdraw; rather they reported the incident to the authorities, who did nothing, citing the lack of sufficient evidence to support their complaint.

[4]      The kidnapping trial began in February 1993. During the trial the female claimant's car is said to have been vandalized, and while the police appeared to inspect the damaged vehicle when it was reported to them, they did nothing further in response to her complaint. Later, her house was broken into and vandalized on March 9, 1993, and at the house after the break-in the applicants report finding a letter threatening death. The female applicant reported this incident but she claims the police refused to investigate because a death squad was thought to be involved. On March 11, 1993 the applicants claim that, while riding together on a motorcycle they were forced off the road and both were slightly injured. They were convinced this was an attempt on their lives.

[5]      The applicants believe that death squads were linked to the government, in particular to one Deputy, a member of government, who was a brother of Dabaub, the kidnapping victim. Further, the applicants believe that some police were involved with the death squads, and that this explains police reluctance to investigate their complaints implicating death squads.

[6]      Following their motorcycle accident they fled to Soyapango and later to San Miguel, in El Salvador. At the end of March the female applicant sought a U.S. visa but was refused. Early in April 1993 the male applicant left to travel overland to the United States, without a visa. He was assisted by family members living there. The female applicant remained in hiding in San Miguel until her brother-in-law, a resident of Canada, took her to the Canadian Consulate where she obtained a Canadian visa on May 21, 1993. When she applied for a visa, the female applicant was apparently aware that there was a process for making a claim to refugee protection in Canada, but, afraid of remaining in El Salvador, she indicated to the visa officer at the Canadian Consulate that she intended to return, because she believed if she did otherwise she would not obtain a visa. She flew to Toronto on June 8, 1993. A month or so after her arrival in Canada she made application to be accepted as a Convention refugee.

[7]      As for the male applicant, he arrived in Canada from the United States where he had earlier made application to remain. After applying for refugee status in Canada, he then made application to the El Salvadoran Consulate in Toronto for a new passport, because, he says, he was told by a Canadian immigration officer that to remain in Canada he needed a passport for identity purposes. He says that he accepted this direction because he believed that a Canadian immigration officer, representing the Canadian government would know requirements for immigration into, and for immigrants or refugees in, Canada. In any event, having signed the application form for a new passport, he did not go to the El Salvadoran Consulate, which he claims he was afraid to enter even though he claimed to be only a common citizen of El Salvador. The female applicant went to the Consulate to obtain the passport for him.

[8]      When the female applicant left El Salvador, her cousin, a lawyer, was left in charge of the defence in the kidnapping case. He was killed when he was shot at the beginning of October 1993. The kidnapping case was said to be a high profile one, in part because Dabaub, one of the victims was from a well-known and influential family. At the time, his brother, the Deputy, was promoting acceptance by the legislature of the death penalty for crimes such as kidnapping. The defendants in the kidnapping case did not have money to pay for experienced counsel. Had the applicants not taken the case, the defendants probably would have been represented by a public defender, whom the applicants believe could have been manipulated easily, and Dabaub could have ensured the prosecution of the accused defendants was successful. In their view Dabaub had the wealth, influence and power to arrange for death squad harassment and the applicants had no reason to doubt his statements to them that he had support of people in power, which the applicants understood to refer to his brother and his influential connections.

[9]      After the applicants began receiving threatening notes and telephone calls, they went to the police on three occasions. The first was after their reception of the first threatening note said to have been signed by the death squad. On that occasion the police unexpectedly kept the threatening note and the applicants had not kept a copy. The second occasion was when the female applicant's car was vandalized. The police essentially did nothing other than to inspect her vandalized automobile. The third was after her house was ransacked, and again no positive action was taken by the police.

[10]      Five or six other threatening notes were reportedly received by the applicants. While not all of them made reference to the kidnapping case the applicants have no doubts that the messages were directed to them because of their involvement in defending the accused students. The applicants did not approach the police about receipt of these notes after the first time, for they no longer expected any positive response by the police. These notes were not reported to or given to the police, but they were retained by the female applicant and then were left in El Salvador by her, because she feared they would be discovered in any search of her or her belongings at the airport on her departure for Canada, and if found, that she would be prevented from leaving the country.

The decision of the panel

[11]      The panel rejected the applicants' claims to be Convention refugees. It determined their evidence was not credible, pointing to several implausibilities in their story.

[12]      First, the panel found it implausible that the victim Dabaub would approach the applicants and ask them to withdraw from the defence of the accused, threatening to implicate them as accomplices if they did not agree to withdraw. In the panel's view it was to the advantage of the kidnap victims to have the accused represented by inexperienced defence counsel, as the applicants admittedly were, and the panel did not agree that a public defender would have been more easily manipulated than the applicants would have been.

[13]      Second, the panel found it implausible that the applicants, trained as lawyers, would have gone to the police with "6 or 7 letters signed by the Death Squad demanding the claimants withdraw from the case" and would have turned the letters over to the police without recovering them or keeping copies of them. Clearly the panel here erred in recording and understanding the evidence before them, for the applicants' evidence was that only the first such letter was taken to and retained by the police. Subsequent letters were not reported to, shown to, or retained by the police. They were retained by the female applicant. They were left behind in El Salvador when she left her country for Canada.

[14]      Third, the panel found it implausible that the male applicant, trained in law, would rely on the instruction of a single immigration officer in Canada to obtain a new El Salvadoran passport after he had made a claim to be a Convention refugee. To the panel the story was inconsistent in its depiction of Dabaub as so powerful that the applicants could not stay safely in El Salvador and yet the government of their country would have no interest in alerting embassies abroad, or tracing the male applicant, because he was only a common citizen. The panel found it implausible that a government allegedly on the lookout for them in El Salvador would not alert embassies abroad to watch out for the applicants, presumably in respect of any request for assistance such as the issue of a new passport. The panel noted the female applicant "was far less trusting when she applied for her CVV [Canadian visitor's visa] and blatantly lied to Canadian immigration officials as to her status in El Salvador and her intention to 3return3 after her visit to Canada even though she said she knew there was a refugee system in Canada".

[15]      In the panel's opinion, having provided opportunity to the applicants to clarify implausibilities and not being satisfied with the applicants' explanations, the implausibilities were so material to the applicants' claims that it concluded there was no threat to the applicants in El Salvador. With no credible evidence, since their story was not plausible, the harm said to be feared by the applicants is not one relating to any of the grounds set out in the definition of "Convention refugee" under the Immigration Act.

[16]      In addition, the panel found that current country conditions in El Salvador are such that the applicants will not face any reasonable chance or serious probability of persecution, or even an objectively foreseeable possibility of such persecution, if they were to return to El Salvador. The panel relied on documentary evidence to support its view that in the years since 1993 government in El Salvador had been, and is, taking steps to reduce risks from vigilante groups like the death squads.

Issues

[17]      The applicants submit the panel erred

[18]      In essence, as argued when this matter was heard, the applicants submit that the panel's findings of implausibility were unreasonable, and its finding of current country conditions in El Salvador was with reference only to selected documentary evidence which ignored all more recent and contrary documentation.

Analysis

[19]      As we have noted, in its decision the panel refers to several implausibilities it found in the evidence of the applicants which led it to conclude the evidence was neither credible nor trustworthy. In the usual case such a finding does not invite intervention by the court on an application for judicial review. In an earlier case, Akinlohe v. Canada (Minister of Citizenship and Immigration), (March 14, 1997, Court file IMM-551-96), [1997] F.C.J. No. 296 (F.C.T.D.), I commented:

[20]      In this case the panel erred in its reference to evidence which it found to be implausible when it referred to the applicants having "received 6 or 7 letters signed by the Death Squad" which they turned over to police without retaining copies. As earlier noted, the evidence of the applicants was clearly that only one such letter was turned over to the police, the other letters had been retained by the female applicant and were left behind only when she left El Salvador for Canada. The panel's decision erred as well when it made reference to "the claimant's brother, an elected Deputy [who] was a leading proponent of the death penalty for kidnapping". Clearly the evidence was that the Deputy in question was the brother of the kidnapping victim Dabaub, not the brother of one of the claimants. While the decision does elsewhere refer to "Deputy Dabaub", the first reference is in error and the panel misunderstood or was careless in recounting the evidence on which it relied.

[21]      Other identified implausibilities are said by the applicants to be stated without reasons or any adequate explanation by the panel. I agree. Thus, the finding that the kidnapping victim's asking them to withdraw from defending the accused or risk being identified by him as accomplices of the accused is found implausible "since the claimant's brother, an elected Deputy was a leading proponent of the death penalty for kidnapping", an erroneous understanding of the evidence as we have already noted. Moreover, the decision states "it seems to the panel that it was to the victim's advantage to have the defendants defended by a law firm that was still relatively inexperienced. The claimant said that had a public defender been appointed if they had dropped the case, the public defender would have been more easily manipulated than they were. The panel does not agree." No reason is expressed for this disagreement, nor is any basis for finding this evidence implausibile provided by the panel except for the erroneous reference to "the claimant's brother". There is brief reference in the transcript, in questions asked by the Refugee Claim Officer, to reports in public documents about changes in the public defender's office in El Salvador up to the end of 1993, but that is not cited by the panel as a basis for its finding of implausibility of the claimant's evidence.

[22]      The panel also found another implausibility in the male claimant's explanation for his application for, and receipt of, a new Salvadoran passport after he came to Canada. It was implausible that "a government which could find them in El Salvador would not be able to notify their embassies world-wide to watch out for them". With respect that misunderstands the evidence. The claimants did not seek to establish the government of El Salvador was seeking to persecute them, rather their evidence was that certain elements within government and the police would not intervene to protect them against actions threatened by the death squads. To find implausible a conclusion about the government which the applicants' evidence was not intended to establish is not a basis for rejecting the applicants' testimony. Further, it seems to me improper to discount the male applicant's explanation for his applying for the Salvadoran passport after coming to Canada, on the basis that the panel considered it would not have been a course of action a trained lawyer (from another country and culture) would do on the advice of a Canadian Immigration officer, or, assumedly, on the basis that the panel found the female claimant "far less trusting" in her dealing with Canadian Consular officials in El Salvador, having admitted to lying to Canadian Immigration officials there about her intentions to return, than in her relations with Salvadoran Consular officials in Toronto. Her actions at an earlier time in El Salvador, and more recently in Canada, are not a basis for assessing the plausibility of his actions after he came to Canada.

[23]      These were the implausibilities found by the panel, material to the applicants' claims. On the basis of these implausibilities the panel rejected the claimants' evidence of threats, by Dabaub or by the death squad, and thus it rejected the basis of the applicants' claims to fear vengeance if they returned to El Salvador. In my opinion, that finding cannot stand and it is now set aside.

[24]      The reasons or the bases set out for finding particular aspects of the applicants' evidence to be implausible simply do not reasonably relate to the evidence before the panel. Its conclusions might be reached by another panel, but the reasons for those conclusions must be rationally related to the evidence. Here that is not the case. The decision is patently unreasonable in the absence of reasons related to the evidence adduced.

[25]      Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the Court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the Court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense (see Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.)).

[26]      I turn to the other main conclusion of the panel and the applicants' submissions that it erred by ignoring recent and relevant documentary evidence contradicting its finding that country conditions in El Salvador, since the applicants' arrival in Canada in 1993, were such, at the time of its hearing in December 1996, that they will not face any reasonable chance or serious possibility of persecution if they were to return. Documentary evidence was presented by the Refugee Claims Officer and by the applicants. The panel refers specifically to a United Nations report of August 1992, a LaPrensa Grafica article of August 1994, Central American Reports of 1994 and a report of the Interpress Service of December 1994, all of it commenting on changes in conditions to ensure protection against violent deaths and criminal activity and to promote the rule of law. In its decision, after quoting from documents supporting its assessment of country conditions, the panel states, "The documentary evidence is especially persuasive to the panel because it is objective and comes from a variety of independent and international sources", as though all documentary evidence before it that came from "independent and international sources" was completely in support of the panel's assessment of country conditions.

[27]      Not surprisingly, it was not so one-sided. Some of the documentary evidence submitted by the Refugee Claims Officer reported on continuing activities of death squads and incomplete efforts of government to prevent those, up to and after the reports quoted by the panel. Much of the documentary evidence submitted by the applicants, including some from sources regularly relied upon in assessing refugee claims, and much of it more recently published than the documents quoted and relied upon by the panel, describe the continuing difficulties in El Salvador's efforts to establish the rule of law and to control criminal activity including that of death squads.

[28]      Counsel for the respondent conceded at the hearing of this application that the documentary evidence did not uniformly support the panel's assessment, rather it also portrayed a different situation, one of continuing difficulty in control of violence and criminal activity in El Salvador. In the usual case documentary evidence does paint a varied picture and if the assessment of the panel is based on some of the evidence the court will not intervene unless that reliance is seen to be unreasonable. In my opinion, the reliance here was unreasonable in two respects. First, the conclusion is said to be "especially persuasive" by the panel, yet it makes no reference to the existence before it of any contradictory evidence. Second, much of the contradictory evidence before the panel, from sources ordinarily accepted, was published later than the documents relied on by the panel, and still no reference was made to that evidence. I agree with the suggestion of counsel for the applicants that the panel's decision would appear to ignore any documentary evidence contradicting its assessment of country conditions. In my opinion, the basis for the panel's assessment of country conditions, as stated in the decision, was unreasonable in light of the documentary evidence before the panel.

[29]      For the respondent Minister it was urged at the hearing of this application, that the applicants' fear of persecution by death squads was not reasonable since it arose solely as a result of their early involvement, in 1993, as defence counsel in a trial that was long since completed. That fear was not a fear of persecution by government itself, and the panel's conclusion was reasonable that, in light of current country conditions, it was not established that the applicants would be exposed to any threat by death squads. That may be, but the Court must concern itself with the decision in question and the reasons expressed for it, not with rationalizing the result on a basis other than expressed by the panel.

Conclusion

[30]      For the reasons set out the application for judicial review is allowed, the decision of the panel dated December 6, 1996, is set aside and the applicants' claims to be Convention refugees are referred back to the Immigration and Refugee Board for reconsideration by a different panel, in accord with the law.

                             W. Andrew MacKay

                                 Judge

OTTAWA, Ontario

January 16, 1998.