Date: 20031110
Docket: IMM-3686-02
Citation: 2003 FC 1322
Ottawa, Ontario, this 10th day of November, 2003
BETWEEN:
ROMEO FIDADELFO RIVERA-VELASQUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RUSSELL J.
[1] This is an application for judicial review of the decision ("Decision") of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Panel"), dated June 14, 2002, dismissing the refugee claim of Romeo Fidadelfo Rivera-Velasquez ("Applicant"). The Applicant requests that the Decision of the Panel be set aside and that the claim be referred back for redetermination by a different panel.
BACKGROUND
[2] The Applicant, born January 2, 1980, is a citizen of Guatemala of native heritage whose father and grandfather were prominent leaders in their community. The Applicant's grandfather was elected as a representative of a group of native people who pursued land claims in the Guatemalan courts.
[3] The Applicant's father acted as a spokesperson for his people with the authorities in Ojo de Agua and Canibal and, as a result, was forced to serve as deputy mayor. The Applicant submits that this was not an honour, but a dangerous position which required his father to travel into remote areas where he was at risk from both criminals and the army.
[4] As the Applicant became more aware in his early adolescent years of the denial to his people of their basic political and social rights, he became involved through an older friend in a loose-knit gathering of native youth in his village.
[5] The Applicant was arrested and beaten with others at the local meeting place in his village in July, 1993, and warned by the police that they would be watching him.
[6] In September, 1993, the Applicant and others were attacked by non-native people in the local native meeting house. The Applicant fled after being injured and learned later that the authorities had arrested seven of his friends.
[7] After this incident, leaders from the Applicant's group went to the Guatemalan authorities to press them to charge those responsible for the attack. After this, two of the seven who had been arrested were murdered and another three disappeared.
[8] In addition to the difficulties experienced by his immediate family, the Applicant's aunt was shot and wounded in 1993, her husband was shot and killed in 1995, and another aunt was shot and killed in 1994. No investigations were conducted into any of these incidents.
[9] In 1995, the Applicant received death threats and military men in plain clothes forced their way into his home and abused and threatened his family. These incidents precipitated the Applicant's flight to the United States in June 1995, when he was just fifteen years old.
[10] The Applicant indicates that he did not seek asylum, but remained underground, in the United States because he feared that American immigration authorities would refuse his claim and deport him back to Guatemala. After working and attending college in the United States, the Applicant was apprehended by immigration authorities. After his release, and upon advice from a lawyer in the United States who counselled him that Canada was his only option, he left his brothers and sisters and the life he had built for himself in the United States. This occurred in July, 2000 when he was nineteen years old. He claimed asylum at the Fort Erie port of entry in Canada.
[11] All of the Applicant's nine siblings have left Guatemala. He believes that his two youngest siblings who fled at Christmas time in 1999 are somewhere in Mexico, but his brothers have been unable to reach the parents or to locate the missing siblings.
[12] The Applicant based his refugee claim on an alleged fear that he would suffer persecution in Guatemala by reason of his race (indigenous), perceived political opinion and membership in a particular social group (family).
DECISION UNDER REVIEW
[13] The Panel found that the Applicant did not have a well-founded fear of persecution in Guatemala and that there was "an absence of evidence that he would suffer persecution, or forms of discrimination tantamount to persecution, if he were to return to Guatemala."
[14] In a short, three-page Decision, the Panel dealt with what it saw as the crux of the matter as follows:
... The documentary evidence indicates that the primary reason for the inability of the indigenous population to gain political and economic strength is a lack of education opportunities and social programs. Indigenous people are taken advantage of because of their low social status and inability to seek redress. The claimant does not share these characteristics. He is well educated, speaks several languages and is trained at a community college in the United States. He is eminently employable in Guatemala. There is an absence of evidence that persons with indigenous backgrounds are unable to find employment because of their race, per se. Nor is there evidence in the documents to suggest that the claimant would be persecuted by reason if his race. The internal conflict is over. This is not to say that human rights abuses do not occur, or that racism has been eliminated. The situation though has changed substantially since the claimant left in 1995. He has no fear of forced recruitment or participation in civil defence patrols. He is free to live anywhere, in the country, he wishes.
[15] The Panel then concluded that "there is insufficient evidence to conclude that Romeo Fidadelfo Rivera Valasquez (sic) has serious reasons for considering that he would be persecuted if he were required to return to Guatemala."
[16] The Applicant submits that country evidence filed at his hearing indicates that, despite an improvement in Guatemala, serious problems do remain. There are reports of armed groups with links to the authorities participating in illegal acts and reported increases in extrajudicial killings in the nature of deaths in prisons and "social cleansing" operations. A large proportion of human rights violations involve the obstruction of justice and the state's failure to investigate and punish law breakers. The Applicant submits that this demonstrates a failure by the state to protect its citizens, and its aboriginal citizens in particular.
ISSUE
[17] The Applicant raises the following issue:
Did the Panel err in law by ignoring evidence when it found that there was an "absence of evidence" that the Applicant would suffer persecution?
[18] Mr. Jarvis, counsel for the Respondent, raised objections with the Court at the hearing concerning what he regarded as new issues that counsel for the Applicant did not raise in her written materials and only brought up in oral argument.
[19] Counsel for the Respondent correctly referred me to the decision of the Federal Court of Appeal in Coomaraswamy v. Canada (Minister of Citizenship and Immigration), 2002 F.C.A. 153, [2002] F.C.J. No. 603. Coomaraswamy, supra, was approved and followed by Layden-Stevenson J. in Kazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 969, where, at paragraphs 10 and 12, she stated as follows:
10. It must be mentioned that during the course of his oral argument, the applicant's counsel took a turn that put him on a new path. Counsel changed his argument from one alleging breach of procedural fairness for failure to provide an interpreter to one alleging breach of procedural fairness for failure to give notice that the obligation regarding interpretation, if required, lay with the applicant. He submitted that the visa officer was required to arrest the interview to enable the applicant to make provision for an interpreter. The respondent's counsel, rightfully, took exception to these arguments for they were not raised in the written submission and the respondent had not had notice of them. The respondent requested the opportunity to file written submissions in response to the arguments, should the Court be prepared to entertain them.
...
12. It is not open to the applicant to recast his arguments at the hearing. Where an issue is not contained in the applicant's memorandum, counsel for the respondent has no opportunity to respond and it is not appropriate for the Court to decide it: Coomaraswamy et al v. Canada (Minister of Citizenship and Immigration), 2002 FCA 153, [2002] F.C.J. No. 603. Accordingly, the arguments alleging a requirement to give notice to the applicant of his right to retain an interpreter will not be considered.
[20] The Respondent's position is that Applicant's counsel only takes issue with one matter in her memorandum and that is "whether the panel considered all of the evidence supporting his alleged fear of persecution." Counsel for the Respondent felt that counsel for the Applicant deviated somewhat from her written memorandum when, in oral argument, she emphasized that there was lot of strong evidence in relation to country conditions that the Panel had ignored and when she took issue with the Panel's conclusion that the "internal conflict is over."
[21] It is true that, in her written memorandum, counsel for the Applicant only highlights one issue:
Did the Panel err in law by ignoring evidence when it found "there is an absence of evidence that he would suffer persecution"?
[22] But she also goes on to elaborate on this issue and what she intends to raise at the hearing:
14. In its reasons, the Panel stated that "there is an absence of documentation" and "an absence of evidence" to support the Applicant's fear, a harsh finding tantamount to the finding of "no evidence".
...
16. There was ample evidence in the record of the past persecution of the Applicant and his family, of the hostility of non-native people toward native people, and, in the form of country documentation, of the continuing failure of the state to offer effective protection to its citizens.
17. The panel made no negative findings of credibility against the Applicant and there would therefore appear to be no basis upon which the panel may ignore the Applicant's testimony or the uncontradicted statement in his personal information form that "there are disappearances. There are kidnappings. There are acts of violence against the indigenous people that are quitely (sic...quietly) approved of by the authorities and...facilitated by the authorities," for which the Applicant cites as his authority the news brought by other refugees and illegals in the United States.
...
19. In the case at bar, the Panel made a finding of "no evidence" or "an absence of evidence" and in so doing did not review and weigh the evidence which was before it and upon which it could have concluded in the Applicant's favour.
20. The definition of "convention refugee" requires the making of a determination of the likelihood of future events, and it is respectfully submitted that in a country like Guatemala where there is a long and grave history of severe human rights violations, evidence in the nature of personal testimony and country documentation calls for the closest possible scrutiny and evaluation.
[23] The gravamen of the Applicant's complaint is that, when the Panel said "there is an absence of documentation" and "an absence of evidence" to support his fear of persecution, this was tantamount to a categorical finding that no evidence had been presented or considered concerning the central aspect of his claim. I will consider the application on this basis.
ARGUMENTS
Applicant
[24] I consider all matters raised by the Applicant's counsel at the hearing as going to the single issue raised and, in so far as they may obliquely raise other issues not canvassed in the written memorandum, I have ignored them.
[25] The Applicant claims that in its reasons, the Panel stated that "there is an absence of documentation" and "an absence of evidence" to support that Applicant's fear of persecution. This is a harsh finding and is tantamount to a finding of "no evidence". The Applicant refers to the Oxford English Dictionary that defines absence as "the state of being absent or away" and defines "absent" as "being away, withdrawn from or not present."
[26] The Applicant submits that there was ample evidence in the record of past persecution of the Applicant and his family, of the hostility of non-native people toward native people and, in the form of country documentation, of the continuing failure of the state to offer effective protection to its indigenous citizens.
[27] The Applicant notes that the Panel made no negative findings of credibility against him and there would therefore appear to be no basis upon which the Panel could ignore the Applicant's testimony or the uncontradicted statement in his personal information form that "there are disappearances. There are kidnappings. There are acts of violence against the indigenous people that are quitely (sic) approved of by the authorities and ... facilitated by the authorities" for which the Applicant cites as his authority the news brought by other refugees and illegal aliens in the United States.
[28] The Applicant submits that the Federal Court of Appeal has in the past implied a two-fold test in circumstances where the decision-maker has found that there is no evidence: first, of course, that the finding of no evidence be sustained by the record and, secondly, that the finding be material to the Panel's decision (Mahjoor v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 449.
[29] The Applicant submits that, in this case, the Panel made a finding of "no evidence" or "an absence of evidence" and in so doing did not review and weigh the evidence that was before it and upon which it should have concluded in the Applicant's favour.
[30] The Applicant submits that the definition of "Convention refugee" requires the making of a determination of the likelihood of future events. He further submits that, in a country like Guatemala where there is a long and grave history of severe human rights violations, evidence in the nature of personal testimony and country documentation calls for the closest possible scrutiny and evaluation.
Respondent
[31] The Respondent argues that the Applicant cites two partial, incomplete passages from the Decision which the Applicant then uses to allege that the Panel did not consider the available evidence at all. The Respondent submits that the Applicant has misconstrued what the Panel, in fact, indicated. The relevant passages are as follows:
There is an absence of documentation, however, supporting the claimant's contention that he will suffer substantial discrimination or form (sic) of persecution.
...
However, there is an absence of evidence that he would suffer persecution or forms of discrimination tantamount to persecution is he were to return to Guatemala.
[32] The Respondent contends that these passages do not indicate that the Panel failed to read all of the Applicant's evidence or listen to all of his testimony concerning his past persecution, as is made clear by the Panel's repeatedly referring to his persecution evidence elsewhere in the Decision:
In the extensive narrative to his Personal Information Form, the claimant goes to considerable length to explain the problems his family had during the time of the civil war in Guatemala.
...
The claimant comes from a rural indigenous family and his family has suffered during the time of the internal conflict.
[33] The Applicant points out that these passages merely refer to his family; they do not show that the Panel considered the Applicant's own experiences.
[34] The Respondent further submits that the two passages in question do not indicate that the Panel failed to consider the documentary evidence with respect to the availability of state protection, as is made clear by the Panel's repeatedly referring to this documentary evidence in the Decision:
The documentary evidence indicates ... the poverty and illiteracy rate among indigenous people in Guatemala is higher than for other Guatemalan races. Lack of education and language skills has compromised the ability of indigenous people to gain access to the country's political, economic, social and cultural mainstream. Human rights abuses, much diminished from the time of the civil conflict, still bear disproportionately on the indigenous population because of their vulnerable economic, social and political status.
...
The documentary evidence indicates that the primary reason for the inability of the indigenous population to gain political and economic strength is a lack of education opportunities and social programs. Indigenous people are taken advantage of because of their low social status and inability to seek redress.
[35] The Respondent also argues that the Panel obviously considered the Applicant's statements in the context of current human rights abuses suffered by aboriginals in Guatemala, as was made clear by the Panel in the Decision:
Human rights abuses, much diminished from the time of the civil conflict, still bear disproportionately on the indigenous population because ...
...
Indigenous people are taken advantage of because ...
[36] The Respondent further submits that the Applicant's "dictionary-led assault" on selected passages from the Decision should not succeed. The Respondent argues that the use of the word "absence" by the Panel, pursuant to the dictionary, could mean a "complete" absence or merely a "partial" absence. And while the Applicant speculates that the Panel meant "complete" absence, the Panel clarified its use of the word at the end of the Decision:
The panel therefore finds that there is insufficient evidence to conclude that Romeo Fidadelfo Rivera Valasquez (sic) has serious reasons for considering that he would be persecuted if he were required to return to Guatemala.
[37] The Respondent concludes that the use of the word "absence" by the Panel does not suggest that it saw no evidence and so must have ignored some of the Applicant's evidence.
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Panel?
[38] The Court must first determine what the appropriate standard of review is for this case.
[39] In Aguebor v. Minister of Employment and Immigration (F.C.A.), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[40] The Court should not seek to reweigh evidence before the Panel simply because it would have reached a different conclusion. As long as there is evidence to support the Panel's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
Did the Panel err in law by ignoring evidence when it found that there was "an absence of evidence"that the Applicant would suffer persecution?
[41] The Panel's Decision is regrettably short and its terminology is often loose to the point of confusion. However, the Decision must be looked at as a whole and specific passages should not be isolated and held up to microscopic examination.
[42] Muldoon J. in Annalingam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1078 warned against the dangers of overly zealous semantic analysis:
19. Did the board hold up the "cleansed" evidence to an artificially high standard? The applicants point to the board's use of word "would" (as opposed to the word "could") which latter is used in subsection 69.3(5) to suggest that it did impose an artificially high standard. This court cannot, however, understand the word "would" as differing substantively from the word "could". Even less feasible is the theory advanced by the applicants that the word "would", as used by the board, indicated that the board was looking at whether the applicants would have had a 100% chance of succeeding based on the cleansed evidence. As the respondent notes, to accede to the applicants' submissions would, in the words of Mr. Justice Joyal in Miranda v. Canada (Minister of Employment and Immigration)(1993), 63 F.T.R. 81 (T.D.), amount to a microscopic examination or a kind of semantic autopsy of the decisions as a whole.
[43] Gibson J. in Chen v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1954 also refused to engage in a microscopic examination of the decision at issue:
13. That leaves only the issue of whether or not the CRDD's findings regarding the credibility of the applicant were reasonably open to it. Counsel for the applicant urged that they were not; that those findings were perverse and capricious and made without regard to the totality of the material before the CRDD. Counsel invited me to engage in a microscopic examination of the reasons of the CRDD which, while not entirely internally consistent, were sufficiently coherent to support its finding of want of credibility.
[44] Martineau J. held in Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 461 that, unless the contrary is shown, the Panel is assumed to have considered all the evidence presented to it:
18. The standard of judicial deference that applies to findings of fact and to the weight given to the evidence by the Appeal Division is quite high. Unless the contrary is shown, the Appeal Division is assumed to have considered all the evidence presented to it. The Appeal Division's decision in this regard must be interpreted as a whole and it should not be subject to microscopic examination.
[45] When the Decision is looked at in its entirety, it suggests the following:
1. The Panel understood that the Applicant alleged fear of persecution if returned to Guatemala by reason of race (he is indigenous), perceived political opinion and membership in a particular social group;
2. The Panel acknowledged the "extensive narrative" in the Applicant's Personal Information Form and the fact that he had gone "to considerable length to explain the problems his family had during the time of the civil war in Guatemala";
3. The Panel acknowledged and accepted that "[l]ack of education and language skills has compromised the ability of indigenous people to gain access to the country's political, economic, social and cultural mainstream";
4. The Panel further acknowledged and accepted that "[h]uman rights abuses, much diminished from the time of the civil conflict, still bear disproportionately on the indigenous population because of their vulnerable economic, social and political status";
5. The Panel acknowledged and accepted that, notwithstanding the conclusion of the civil war, "Indigenous people are taken advantage of because of their low social status and inability to seek redress";
6. The Panel acknowledged and agreed that human rights abuses still occur and that racism has not been eliminated;
7. Notwithstanding all of the matters which the Panel acknowledged and/or accepted it still felt that the Applicant had not established his claim. This was because:
a. the abuses suffered by the Applicant and his family were in the past and times have changed. The internal conflict is over even though human rights abuses and racism have not been eliminated. The situation has changed substantially since the Applicant left in 1995;
b. the Applicant is now well-educated, speaks several languages and has been trained at a community college in the United States;
c. the Applicant is employable in Guatemala and race, per se, will not exclude him from employment.
[46] Having reviewed the Decision in this way, it is not possible for me to conclude that the Panel intended to say that there was literally no evidence at all before it on the important issues raised by the Applicant. I am convinced that the Panel did consider the Applicants' "extensive narrative" and the "documentary evidence" to reach its conclusion that country conditions, although not perfect, have changed sufficiently to remove the grounds of the Applicants' fear of persecution. This is not to say that this Court would have reached the same conclusion but that is beside the point in a context where the court should only interfere on the basis of the grounds articulated in Aguebor, supra.
[47] The Applicants' reluctance to return to Guatemala is perfectly understandable. He is now a well-educated man whose family has dispersed somewhat and who has an understandable dislike for abuses of the past and a fear of what the future might have in store for him in that country. But this does not make him a Convention refugee and the Panel, in its Decision, shows itself to have been alive to this crucial distinction.
[48] I conclude that the Panel did not err in law on the grounds raised by the Applicant. This Application for judicial review will be dismissed.
[49] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell" J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3686-02
STYLE OF CAUSE: ROMEO FIDADELFO RIVERA-VELASQUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 8, 2003
REASONS FOR ORDER BY: RUSSELL J.
DATED: MONDAY, NOVEMBER 10, 2003
APPEARANCES BY: MS. Christina Kurata
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Ms. Christina Kurata
206 Bloor St. West, Suite 7
Toronto, Ontario
M5S 1T8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030908
Docket: IMM-3686-02
BETWEEN:
ROMEO FIDADELFO RIVERA-VELASQUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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