Date: 20050511
Docket: IMM-8970-04
Citation: 2005 FC 672
Toronto, Ontario, May 11th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JORGE ERNESTO VELASQUEZ CRESPO; and
ARACELIS COROMOTO NAVA GARCIA; and
JORGE DANIEL VELASQUEZ NAVA; and
DANIEL EDUARDO VELASQUEZ NAVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a family from Venezuela. Ms. Garcia is the principal applicant. Her husband, an anesthesiologist, and their two children are also applicants. The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that they are not Convention refugees or persons in need of protection. They seek judicial review of that decision. I have determined that their application should be allowed.
[2] Ms. Garcia has an executive secretary degree. For approximately 20 years, she worked for the Venezuelan Petroleum Company (PDVSA). She claims that in January, 2003, she was laid off after supporting a national strike and signing a petition for the impeachment of President Chavez. As a result, her name was published nationally, her family members were labelled "traitors", their basic health care and social services were suspended and her children were subject to discrimination at school. Venezuelan government officials and groups (the Bolivarian Circles) and groups associated with the Revolutionary Armed Forces of Columbia (FARC) threatened and intimidated the family.
[3] More particularly, Ms. Garcia alleges that she received anonymous phone calls asking for confidential information about PDVSA company personnel. She claims to have been kidnapped by four men (two dressed as government police in DISIP uniforms and two in civilian attire) who demanded confidential information relating to her former employer. She was threatened that if she did not provide the information, she and her family would be killed. She was also told that it would do no good to go to the police, and that she was not to go, for her captors were the police. She reports that, after being released outside the city, she sought help and approached a passer-by who took her to a clinic.
[4] After the kidnapping, the family left their home and went, first, to Ms. Garcia's sister-in-law's home. From there, she and her husband spent two weeks searching for other hiding places. Among other things, Ms. Garcia claims to have received a phone call in August informing her that she had three days within which to provide the requested information or she would have to pay a monthly fee of 1.5 million bolivars. The family fled Venezuela on September 8th.
THE DECISION
[5] The RPD conducted an exhaustive review of the documentary evidence on country conditions. On the basis of its review, it made a number of findings. The board concluded that while there were former PDVSA employees who were denied the right to earn a livelihood in Venezuela or who were subject to the risk of serious harm, Ms. Garcia did not fit such a profile.
[6] She was not employed in a management position in the PDVSA; she did not hold an official office in the union and, she was not a member of a political party. It was implausible that all 3.2 million Venezuelans who signed the petition to impeach President Chavez would suffer extreme hardship in obtaining employment. The RPD noted that there was no support for such incidents of widespread discrimination in the documentary evidence.
[7] The board noted that Ms. Garcia's educational background, her lengthy employment history, her strike and union activities and her low political profile led to the conclusion that she would be able to find a job in Venezuela.
[8] Similarly, the board concluded that, other than a few reported incidents at oil camps, there was a lack of evidence to support the claim that former PDVSA employees were being targeted for violence. The RPD concluded that it was implausible that this was going on without any report of such incidents.
[9] The board expressed concerns regarding the credibility of Ms. Garcia's alleged fear of persecution at the hands of DISIP. It stated that the notes from her interview with the immigration officer indicated that she feared the Bolivarian Circles (a civilian group) and the FARC (a guerilla group), but she made no mention of DISIP (the intelligence faction of the national police). Nor had she mentioned her alleged abduction, on July 22, 2003, by members of DISIP and FARC. Because the abduction was a significant element of the claim, the board found that Ms. Garcia's failure to mention the incident at her interview compromised her credibility.
[10] The capital city of Caracas was regarded as an internal flight alternative (IFA). The RPD noted the extortions, kidnappings, and killings committed by Colombian guerilla groups, such as FARC, and the fact that these were serious in areas along the Venezuelan-Colombian border. However, it observed that there were no reports of FARC operating in Caracas and found that there was no serious possibility that FARC guerillas would pursue the applicants if they were to relocate there.
[11] The board acknowledged that criminally-motivated kidnappings to secure ransom payments were serious problems in Venezuela and that Venezuelan citizens living in urban centres, such as Caracas, were at risk of being victims of such criminal activity. It concluded that, at best, the applicants would face the same level of risk as everyone else who lived in Caracas and would not be targeted personally.
[12] Finally, the RPD considered the ages, good health, lengthy employment experiences, and educational backgrounds of the adult applicants and determined that there were no serious social or economic barriers to their relocation to Caracas.
ISSUES
[13] The applicants raised a number of issues in the written submissions, many of which were not pursued at the hearing. The oral arguments refined, to a significant degree, the earlier arguments. I am satisfied that the thrust of the applicants' arguments can summarily be stated in the following manner. The RPD ignored significant and material evidence that resulted in two discrete errors: misconstruing the basis of the claim and concluding that a person with Ms. Garcia's profile would not be targeted.
ANALYSIS
[14] The applicants contend that the RPD was sidetracked by the employment issue and erroneously proceeded on the basis that the claims related to the termination of Ms. Garcia's position at PDVSA and the statement that she could not obtain employment in Venezuela. Rather, they contend, it was the kidnapping and threats arising out of her possession of confidential information that constituted the basis of the claims. They rely on various documents and extracts from the evidence that were allegedly ignored by the board in support of their submission.
[15] There is a presumption that the RPD has considered all of the evidence that is before it and it is not necessary for it to refer to every piece of evidence that it received: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, the presumption may be rebutted and as Mr. Justice Evans, then of the Trial Division as it was then constituted, stated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.) - the more important the evidence that is not mentioned specifically and analyzed in the [board's] reasons, the more willing a court may be to infer from the silence that the [board] made an erroneous finding of fact without regard to the evidence.
[16] Having carefully reviewed the transcript of the hearing as well as the documentation contained in the tribunal record, I am satisfied that the applicants are correct. The narrative of Ms. Garcia's personal information form (PIF) contains six paragraphs. The first three paragraphs detail the chronology of events that provide the contextual background. The paragraphs that follow indicate that it was the kidnapping event that caused her to fear for her life and the lives of her children and it was that event that caused the applicants to flee from their home.
[17] The port of entry (POE) notes indicate that Ms. Garcia and her family were threatened because [she] had "a lot of confidential information - codes, keys, personal information. Groups wanted information and I would not provide it. Have been constantly threatened because of this. Began in July 2003".
[18] In response to questions from the presiding member at the hearing regarding her efforts to obtain employment, the following exchange occurred:
Q. Madam, after you were fired from the PDVSA, did you attempt to find other employment in Venezuela?
A. Yes, I attempted to obtain employment to different companies in Sidel Hida (phonetic) as well, but the new directive of PDVSA sent a letter to (sic) denying employment to any of the previous employees of PDVSA.
After I saw the letter and went to different companies, service companies and they showed me the letter that PDVSA had circulated, I just stayed and didn't bother anymore. I didn't have the need to work. My husband was continue - was still working.
In responding to questions from counsel, Ms. Garcia made the following statement:
Q. If you were to suddenly get a response saying Yes, Aracelis, you can come back and get your job back, would you accept that?
A. No, sir, I would not. I am not here in Canada because I was dismissed from PDVSA.
I'm not here because my children were denied school rights. I'm not here because - or medical assistance. I'm not here for any of those reasons. I am here because they are trying to kill me and my children in Venezuela.
I did not provide those groups with the information they requested from me. I'm sure that if I were to go back to Venezuela, I put a foot on the airport, any airport, they would kill me. They would localize - they would find me and they would kill me.
Q. How would they be able to find you at the airport?
A. My name, my I.D., my position at PDVSA, as I indicated earlier, were publicized -were published in two different regional papers. It has been entered into a computer system. To them, I am a military objective which is local - can be located anywhere in the country. If I were to enter my I.D. into the computer system at the airport, they would be able to locate me.
Q. And you said that part of the reason that they kidnapped you was they wanted some information from you, correct?
A. Yes, sir.
Q. You think that they would still be interested in that information?
A. Yes, they will. They still are in need of that information. PDVSA is not operating at this time in the same capacity as they were doing prior to the strike.
Q. And when you - you testified that you husband was working right up until August, I believe, correct?
A. After the 22nd of July when I was kidnapped, my husband request some leave,leave of absence from the clinic where he was working at. He was head of thedepartment in that clinic. And he had to ask for that leave of absence because -for us to be able to move around and get some protection before anotherdecision was made.
Q. And did your husband make good money at that job?
A. Yes, sir. Yes, he made a lot of money.
[19] The transcript reveals that, despite her participation in various demonstrations, Ms. Garcia, after the events of the July 8th demonstration, had resolved not to participate further. It also indicates that when she received the first telephone calls in July, she paid little attention to them. She did not take them seriously. It was only after the kidnapping that she became fearful for her life and the lives of her family members. The RPD does not appear to have turned its mind to this evidence at all. If it did, it does not say so. I am, as a result, left with the distinct impression that the applicants are correct that the board may well have misconstrued the basis of the claim.
[20] The board's focus related primarily to the question of whether Ms. Garcia could obtain employment in Venezuela. For the foregoing reasons, I conclude that its efforts in this respect were misplaced. However, in a somewhat peripheral manner, the RPD also stated:
...I considered the female claimant's profile with PDVSA prior to being fired by her employer and particularly her strike and union activities during and after the December 2002 strike...I find that the female claimant's employee, union and political profile is dissimilar from those former PDVSA employees that would be at risk of being denied the right to earn a livelihood in Venezuela or being subjected to serious harm at the hands of member of the Bolivarian Circles or Venezuelan state authorities. (my emphasis)
[21] The applicants take no issue with the board's finding in relation to the "political" and "union" profiles. They contend that, when regard is had to the evidence, the finding with respect to the "employment profile" cannot be sustained.
[22] Again, I turn to the transcript and the documentation contained in the tribunal record. In response to the question of the member, the following exchange occurred:
Q. Madam, according to your Personal Information Form, you worked as an executive secretary in the payroll department of the PDVSA. What were your job responsibilities as an executive secretary in the payroll department?
A. Executive secretary of general management of the district of Tijuana, exploration and production division, ...division west or west division, Zulia state. I was the right hand of the general manager of that district. I managed the executive system of that management team, I managed payroll, budget control, employee records and payroll. I managed all the keys and passwords for the bank accounts designated for that management team. I managed the access codes for transferring funds to different accounts with the approval from the manager.
The general manager of that district had the responsibility, he had the responsibility to produce 450,000 barrels of petroleum,
[...]
It was 600 billion or $4 billion annually...And then he would approve 5 million...on a daily basis.
Q. Madam, in your position as executive secretary of the payroll department, who did you report to?
A. I reported to the general manager of the Tijuana (phonetic) district, Tijuana.
Q. And madam, how many people were employed in your department, the payroll department, approximately?
A. The management for the district had 2,000 people. They were responsible for 2,000 people.
[23] Ms. Garcia's evidence in this respect is corroborated by a document (tribunal record at p. 177) purportedly authored by the "Tia Juana District General Management" and forwarded to "PDVSA Human Resources Management". The document confirms that Ms. Garcia had access to and knowledge of "the files of all supervisory personal, code access, code keys of all offices, cars and management Petroleum Site houses...in the General Management of the west Petroleum Division of Venezuela, S.A.". There is additionally a document, dated September 11, 1998, advising Ms. Garcia of her promotion to the "Managerial, Professional and Technical Personnel of the company" (tribunal record, at p. 189).
[24] It seems to me that this evidence, at the very least, indicates that Ms. Garcia's role in PDVSA extended beyond that of an "executive secretary of the payroll department". It may be that the RPD simply discounted this evidence. If that is the case, it did not say so. It was certainly open to the board to consider the evidence and reject it - it was not, in my view, open to the RPD to ignore it. Its reasons are completely silent in this regard. It is not my function to speculate as to what its determination regarding Ms. Garcia's employment profile might have been had it considered this evidence.
[25] The respondent Minister contends that notwithstanding these alleged errors, given the fact that the RPD had serious concerns with Ms. Garcia's credibility regarding her fear and her family's fear of persecution at the hands of members of the DISIP and the FARC, the finding of the IFA is dispositive. I disagree.
[26] The respondent is correct that the RPD made an adverse credibility finding in this respect. It did so based on a discrepancy between the statements in the POE notes and in the PIF. More specifically, it took exception to a failure to mention the alleged kidnapping incident at the POE. Ms. Garcia insisted that she had related this information to the immigration officer. She stated that she had been interviewed for 30 minutes and her husband had been interviewed for 50 minutes. During that time, she was certain that she had disclosed the kidnapping incident. She did not know why it was not contained in the notes. She noted that she had an interpreter during the interview. The board found that explanation unsatisfactory. Its stated reason was that counsel had asked a question that "was of a leading nature and was elicited to obtain the intended response". For that reason, the RPD attached "no weight to this testimony by the female claimant". I am mindful that it is the task of the RPD to determine the weight to be assigned to the evidence and that it is not for the court to intervene and substitute its opinion in this respect. However, in the present circumstances, I have considerable difficulty with the position taken by the board for two reasons. First, I refer to counsel's impugned question and Ms. Garcia's response to it.
Q. And when the border official that you talked to about that, when they explained what they were doing, did they say anything to you about the fact that at the hearing, whatever they wrote down here can be compared with what you said in your narrative to see if anything was left out? Did they say anything like that?
A. She said to tell her a brief description of our problems which we had in Venezuela, that we would have the opportunity to explain it in detail with our proofs later on.
[27] The answer did not provide the response elicited by the question. I am far from convinced that in such circumstances, it is open to the board to reject the explanation on the sole basis that the question was a leading one. The second reason, though, is more compelling. The RPD made no mention of the certificate from the "Clinical Center Nardulli I.C.A.", signed by Dr. Mahatma Pocaterra, psychiatric doctor, (tribunal record at p. 230) that states as follows:
By means of this letter it is certified that the citizen Aracelis Coromoto Nava de Velasquez, holder of the identification card No. 7.664.953, was evaluated at the Clinical Center on July 22nd of 2003 by presenting anxiety, shacking (sic), unstoppable crying, psychometric excitation, caused by psychological aggression by individuals that had her under captivity for several hours.
Medical treatment is indicated and behavioural psychotherapy, rest and constant observation.
Certification that is issued for the necessary medical needs, in the City of Ojeda, Zulia State, on the 22 days of the month of July of the year 2003.
[28] Again, there is no reference to this evidence. The problem, as I see it, is that the board does not weigh this document, or for that matter most of the documents tendered by the applicants, which supported the allegations of the persecution they had suffered. I reiterate that the weight to be assigned to the evidence is for the board to determine. However, to assign the weight, it must have regard to the evidence.
[29] There is no question that the board's reasons constitute a masterful exposition of the contents of the documentary evidence. However, the RPD did not examine it in relation to the claim presented by the applicants. Further, in view of the flaws that I have identified, I cannot accept its determination regarding an IFA. The noted problems, regarding the well-foundedness of the applicants' fear of persecution, bear on the issue of the IFA in Caracas. See: Canada (Minister of Employment and Immigration) v. Sharbdeen (1994), 167 N.R. 158 (F.C.A.) at para. 5.
[30] The applicants assert that they have suffered persecution at the hands of FARC and DISIP. The latter operates throughout Venezuela. The board's determination regarding the persecution allegedly suffered by the applicants in Zulia State is defective for the reasons stated. Consequently, given the nation-wide operation of the DISIP, it cannot, at this stage, be determined whether it is reasonable to expect them to take refuge in Caracas.
[31] Counsel did not suggest a question for certification and none arises in this matter which turns on its own unique facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted RPD.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8970-04
STYLE OF CAUSE: JORGE ERNESTO VELASQUEZ CRESPO; and
ARACELIS COROMOTO NAVA GARCIA; and
JORGE DANIEL VELASQUEZ NAVA; and
DANIEL EDUARDO VELASQUEZ NAVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MAY 9, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: MAY 11, 2005
APPEARANCES BY:
Waikwa Wanyoike
(As agent for Mr. Ryan Persad) FOR THE APPLICANT
A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Persad, Patel LLP
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada FOR THE RESPONDENT
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