Date: 20040325
Docket: IMM-4696-03
Citation: 2004 FC 456
Ottawa, Ontario, this 25th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
REINALDO ANTONIO PAZ
DELMI CECILIA REYES PAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Reinaldo Antonio Paz, together with his spouse, Ms. Delmi Cecilia Reyes Paz, arrived in Canada in December 2001 after leaving their native El Salvador and travelling through the United States. Mr. Paz claims that he was relentlessly pursued by his corrupt former employers and that his life was in danger at home. After he became aware of their corrupt activities, he was the subject of verbal threats and two attempted assassinations.
[2] Mr. Paz sought refugee status here but a panel of the Immigration and Refugee Board denied his claim. The Board found his account of events to be implausible and his testimony contradictory. It also noted that Mr. Paz failed to seek the protection of the police.
[3] Mr. Paz argues that the Board made serious errors in its analysis of his claim and asks me to order a new hearing before a different panel of the Board. I find that the Board erred to an extent warranting the Court's intervention. I will, therefore, grant this application for judicial review.
I. Issues
[4] Mr. Paz presented two main issues:
1. Was the Board's conclusion that Mr. Paz's life was not at risk supported by the evidence?
2. Was the Board's conclusion that Mr. Paz should have sought state protection in El Salvador consistent with the evidence before it?
II. Analysis
1. Was the Board's conclusion that Mr. Paz's life was not at risk supported by the evidence?
[5] Mr. Paz worked in the customs department and claimed that he became aware of a scheme to defraud the government treasury of a large sum of money in customs duties. He said his problems began when he brought his concerns to the attention of his superiors and refused to become a party to the fraud.
[6] The Board found Mr. Paz's account of the numerous telephone threats he received and the two attempts on his life implausible. It also found his evidence contradictory on certain points.
[7] Mr. Paz stated that in September 2001 he was travelling by motorcycle on his way home from work and was followed by a pick-up truck. An occupant of the pick-up truck pointed a gun at him, but Mr. Paz sped away before any shots could be fired. He also described a second incident that occurred a month later. A car occupied by three people fired shots at him from a distance. Again, he was able to escape through heavy traffic on his motorcycle. Throughout this period, Mr. Paz received numerous threats over the telephone at his home.
[8] The Board found it unlikely:
· that the first gunman would not have fired his weapon;
· that the second group of gunmen would not have accidentally shot innocent bystanders if there was heavy traffic at the time;
· that attempts would be made on Mr. Paz's life out in the street rather than at his home;
· that if Mr. Paz's enemies were serious about their threats, they would have failed to kill him.
[9] The Board's concerns were put to Mr. Paz at the hearing. He said he obviously could not know why the first gunman did not shoot him. However, he suspected that the gunman had too little time. Regarding the second incident, he said he simply did not know whether or not innocent bystanders were shot because he left the scene immediately. As for the reason why his assailants chose to target him in public rather than at home, he surmised that they may have wanted to avoid his neighbourhood where he was well-known. Further, for all he knew, they may have tried to catch him at home but missed him. He was avoiding going to his home during that time period. After he survived the two incidents described above, he thought the repeated threats and the incomplete assassination attempts were perhaps a form of psychological torture.
[10] I do not see a basis in Mr. Paz's testimony for the Board's conclusion that his account of events was entirely implausible.
[11] As for the contradictions in Mr. Paz's testimony, the Board cited two. First, the Board noted that Mr. Paz had mentioned in his written narrative that his supervisor dismissed him in September 2001. At the hearing, he said that he was not dismissed but was re-assigned to other, less important, duties and then given no work at all. The Board was concerned that Mr. Paz was unable to explain the contradiction. In fact, at the hearing, Mr. Paz stated that his immediate supervisor told him he was fired but did not actually have the authority to dismiss him. Accordingly, he was simply re-assigned. After Mr. Paz provided this explanation at the hearing, the Board said: "Anyway, it's clarified".
[12] The second contradiction cited by the Board related to Mr. Paz's description of his actions after the second assassination attempt. In his written narrative, Mr. Paz said that after that incident he hid at the homes of friends and relatives. At the hearing, according to the Board, he said that he sometimes stayed at his house, but also stayed from time to time with his mother or his wife's mother. In fact, Mr. Paz's testimony at the hearing was that he and his wife completely abandoned their home after the second shooting incident. His evidence about staying at the house occasionally related to the time period between the first and second incidents.
[13] Again, I do not see a basis in the evidence for the Board's wholesale rejection of Mr. Paz's testimony.
2. Was the Board's conclusion that Mr. Paz should have sought state protection in El Salvador consistent with the documentary evidence before it?
[14] The Board referred to documentary evidence showing that the government of El Salvador is taking considerable steps to deal with corruption. It cited a specific occasion in which the police arrested persons who were involved in a corruption scheme almost identical to the one Mr. Paz described. The Board concluded that this evidence "belied" Mr. Paz's testimony that the police were ineffective at dealing with these kinds of matters. The Board felt Mr. Paz had "nothing to lose" by going to the police even if he believed he might not receive their protection.
[15] But Mr. Paz's testimony went beyond a claim that the police were ineffective. In fact, he stated that he feared what would happen to him if he went to the police. He was working in a government department and said he was aware of criminal behaviour on the part of senior government officials. He believed that the police would protect these individuals and, in fact, would probably assist them in targeting him. He said that going to the police would be "like giving myself up to my assassins".
[16] A person who is unwilling, because of fear, to avail himself or herself of state protection can still meet the definition of a "refugee" (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96(a)). This is the situation Mr. Paz described. His said that going to the police could make things worse for him. According to documentary evidence before the Board, the police in El Salvador sometimes commit serious crimes themselves, including fraud and corruption. In addition, Mr. Paz described a specific incident in which a powerful and wealthy person was given lenient treatment by police, while other ordinary persons, like himself, were treated harshly.
[17] In my view, the Board had an obligation at least to give some consideration to Mr. Paz's claim to fear the police. Its analysis of the issue of state protection was incomplete without it.
III. Conclusion
[18] In light of the Board's analysis of the evidence and its treatment of the issue of state protection, I will allow this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing before a different panel of the Board is ordered; and
3. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries;
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Loi sur l'immigration et la protection des réfugiés, 2001, ch. 27
Définition de « _réfugié_ »
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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FEDERAL COURT
SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4696-03
STYLE OF CAUSE: REINALDO ANTONIO PAZ, DELMI CECILIA REYES PAZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontraio
DATE OF HEARING: February 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: March 25, 2004
APPEARANCES:
Russell Kaplan FOR THE APPLICANTS
Elizabeth Kikuchi FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
RUSSELL KAPLANFOR THE APPLICANTS
Ottawa, Ontario
MORRIS ROSENBERGFOR THE RESPONDENT
Deputy Attorney General of Canada
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