Date: 20030507
Docket: IMM-3270-02
Ottawa, Ontario, May 7, 2003
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
Between:
WENDY GRACIELA DIAZ
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is dismissed.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030507
Docket: IMM-3270-02
Citation: 2003 FCT 561
Between:
WENDY GRACIELA DIAZ
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on June 17, 2002, that the plaintiff was not a Convention refugee. She is asking the Court to reverse that decision and order that the case at bar be referred back to a panel of different members.
[2] The plaintiff, a citizen of Honduras who is 31 years old, alleged a well-founded fear of persecution for her alleged political opinions and membership in a particular social group.
[3] The plaintiff said she left her home on October 12, 2001, to make a deposit of money for her de facto spouse's parents. On her return, she was a witness to the kidnapping of her godmother's sons by three officers of the Criminal Investigation Department (CID). She alleged that on the day in question her godmother's sons, accompanied by their friend, were returning from a race day demonstration in which several persons took part. At the hearing before the Refugee Division the plaintiff testified that her godmother's two children and their friend were arrested by members of the CID because they had taken part in this demonstration, which was against the government.
[4] The plaintiff alleged that the CID security officers beat and insulted her godmother's children, who were 12 and 13 years old, before taking them away; she said they told her to go on her way and that she had seen nothing. She also alleged in her Personal Information Form (PIF) that she saw police officers force the three children to get into a police car and left with them.
[5] The plaintiff alleged that she was nervous and suffering from stress and went straight to her godmother to tell her everything. She later went to a clinic where she spent three days under medication for her nerves.
[6] On the night of October 17, 2001, the plaintiff said she had to leave her house by the back door because at about 9:00 p.m. members of the CID went to her home looking for her. She said she hid and spent the night in the bush; the following day she went to her mother's home, and the latter told her three CID members had gone to her home to look for her and had searched her house.
[7] Subsequently, the plaintiff said she went to San Pedro Sula with the help of her uncle, a place where she hid before she finally left the country. On October 26, 2001, her husband told her that their house had been watched and that she was being sought and charged with being opposed to the authorities in her country. With the help of family members the plaintiff left her country on November 5, 2001, for the U.S., where she spent a week and a half but did not claim refugee status. She arrived in Canada on December 3, 2001, and claimed refugee status the same day.
[8] The plaintiff said she was told in Canada that a sum of money had been paid to free her godmother's sons and that the third child was dead: his body was allegedly found on October 15, 2001. The plaintiff alleged that the newspapers had mentioned the demonstration in which the children took part, but only her mother was able to get a copy of the newspaper mentioning the demonstration.
[9] The plaintiff further alleged that she did not lay any complaint about the fact that she had witnessed the kidnapping of the three children, for fear that she would be killed by the police or CID members. She said she had no documents to certify the death of the third child, but that it was published in the newspapers.
[10] As to her fear of return, the plaintiff alleged she feared testifying against the three CID police officers as after she testified they would be charged with kidnapping three minors and killing one of them. She further alleged the three police officers would be imprisoned after her testimony and she therefore feared their revenge.
[11] In its decision dismissing the plaintiff's claim, the Refugee Division first found that she had witnessed a criminal act. It then found that from the absence of documents corroborating the plaintiff's allegations it should conclude she had not established to the Division's satisfaction that the demonstrations, the kidnapping of the children and the death of one of them actually took place. Then, citing a passage from the documentary evidence indicating that the Honduran government had fired over 100 of the members of the security forces, the police and investigators and judges for corruption and other charges, it concluded that the crime which the plaintiff alleged she witnessed was committed by rogue officers who were not acting on behalf of the government.
[12] At the same time, the Refugee Division concluded that the plaintiff's conduct in the U.S. was not that of someone who had a subjective fear of persecution. Finally, the panel stated that even if the plaintiff had been found credible her fear as explained had no connection with any of the five grounds for refugee status mentioned in the Convention.
[13] It seems to the Court that the Refugee Division properly concluded that the plaintiff was the witness of a criminal act, and as such a victim of criminal conduct. The fear which a person has of being persecuted by criminals cannot be the basis for a refugee status claim and the panel was right to conclude that the plaintiff's allegations had no connection with any of the five grounds of refugee status mentioned in the Convention.
[14] Additionally, the Refugee Division was right to conclude as a result of its analysis of the documentary evidence that [TRANSLATION] "the crime which the plaintiff alleged she witnessed was committed by rogue officers who were not acting on behalf of the Honduran government". In this connection, the panel was entitled to prefer the documentary evidence to the plaintiff's testimony. Further, contrary to the plaintiff's arguments that the police officers were still acting on behalf of the government which hired them and which they represented, this Court has several times held that acts do not become acts of persecution simply because their perpetrator is a government employee.
[15] The negative assessment of credibility made by the Refugee Division was justified and it could draw a negative inference from the lack of corroboration for the holding of the race day demonstration, the counter-demonstration, the kidnapping of the three children by the CID police and the alleged death of one of the children following the kidnapping.
[16] Consequently, the application for judicial review is dismissed.
OTTAWA, ONTARIO
May 7, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-3270-02
STYLE OF CAUSE: WENDY GRACIELA DIAZ v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: May 1, 2003
DATE OF REASONS: May 7, 2003
APPEARANCES:
Oscar Fernando Rodas FOR THE PLAINTIFF
Caroline Cloutier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Oscar Fernando Rodas FOR THE PLAINTIFF
6502 Boul. Saint-Laurent, Suite #6
Montréal, Quebec
H2S 3C6
Federal Department of Justice FOR THE DEFENDANT
Complexe Guy-Favreau
200 ouest Boul. René-Lévesque
Tour Est, 5e étage
Montréal, Quebec
H2Z 1X4
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