Date: 20041029
Docket: IMM-9365-03
Citation: 2004 FC 1495
Ottawa, Ontario, this 29th day of October, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
EDGAR ANTONIO ROMERO GUTIERREZ and
RUTH CAROLINA NAVARRO FLORES
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division (the "tribunal" or the "RPD") of Citizenship and Immigration Canada ("CIC") dated October 29, 2003, determining that the applicants are not Convention refugees and are not persons in need of protection. The applicant seeks a declaration setting aside the decision of the tribunal and an order referring the file back for redetermination in accordance with such directions as the Court considers appropriate.
ISSUE
[2] Did the tribunal make an error of law, base its decision on an erroneous finding of fact, act without or beyond its jurisdiction, or otherwise err in reaching its decision?
CONCLUSION
[3] For the reasons below, this judicial review should be dismissed.
FACTS
[4] The applicant, Edgar Antonio Romero Gutierrez (Mr. Gutierrez or the "principal Applicant"), and his wife, Ruth Carolina Navarro Flores (Mrs. Flores), who is also an applicant in this claim (collectively, the "Applicants"), are both citizens of El Salvador who claim to have a well-founded fear of persecution because the principal Applicant was a witness to a crime carried out by the police and thus cannot count on any state protection. Mrs. Flores bases her claim on her belonging to a particular social group; i.e., the family.
[5] In February 2001, the principal Applicant was in his fifth year of dentistry studies at the University Nueva San Salvador. On February 2, 2001, as he was leaving the university campus in the evening, he alleges to have heard a woman screaming. As he approached the scene, he saw four armed individuals dressed as police officers forcing a blind-folded woman into a car. The principal Applicant was hiding behind a tree; however, one of the kidnappers spotted him and, after being told to kill him by another kidnapper, gave chase. Mr. Guttierez managed to escape, however, and went home a few hours later. He did not, at this point in time, inform his wife or mother of the events he had witnessed.
[6] Three days later, on February 5, Mr. Guttierez claims to have started receiving threatening telephone calls at his home. He claims the kidnappers were able to track him down since they had found some documents he had lost while running away. He was told he would be killed because of what he saw and warned under pain of death not to tell anyone. At this point, the principal Applicant advised his wife and mother of what he had seen a few days earlier.
[7] The following day, February 6, he again received a phone call in which he was told he was going to be killed. At this point, he decided to leave the country. On February 12, he went into hiding at a friend's house. On February 21, he spoke by telephone with his wife who told him that the threatening telephone calls had not stopped and that she, in fact, had received a telephone call that very day in which the aggressor threatened to kill her if she did not reveal Mr. Guttierez's whereabouts. Mr. Guttierez told Mrs. Flores and his mother to take refuge at their family's homes. He also stopped communicating with them for fear the telephone lines were tapped.
[8] The principal Applicant claims that on February 23, he obtained a U.S. visa and tickets for Los Angeles departing March 18. He spoke to his mother back in El Salvador once immediately following his arrival in Los Angeles, and again in June, at which point she told him that Mrs. Flores was in the process of also arranging to leave the country since she was still getting death threats by telephone. However, Mr. Guttierez was not informed (so he claims) of where his wife was planning to go. Finally, fearing deportation by U.S. authorities as his visa came to an end, the principal Applicant decided to come to Canada on August 18, 2001. He claimed refugee status at the border that same day.
[9] It turns out that Mrs. Flores had received subsequent threatening phone calls on March 13 and 19 at her mother's house, and so, since the aggressors knew where she was, she decided to leave the country as well. She requested a U.S. visa and had an interview on April 18. Her mother did not want her to go to the U.S., however, since she knew no one there, and so, as she had family in Canada with whom she could stay, she obtained a Canadian visa on May 28.
[10] Mrs. Flores claims that she continued to receive death threats by telephone at her mother's house in the meantime, and that, on June 8, two individuals inquired at the house about her whereabouts (she was hiding in the home and her brother, who answered the door, said that she was not in). When she finally received her Canadian visa on June 21, she departed almost immediately, on June 25, arriving the following day. She alleges she had received no news from her husband for the past five months and did not know where he was. She claimed refugee status on August 19, 2001.
DECISION UNDER REVIEW
[11] The Applicants' claim was heard August 4, 2003, and on the basis of a few inconsistencies between the principal Applicant's testimony and his written statements in his Personal Identification Form (PIF), as well as an important omission and general lack of plausibility in the events described, the tribunal refused the claim of both applicants.
[12] The main points of contention for the tribunal surrounded the failure of the principal Applicant to mention some key evidence in his Port of Entry (POE) statement and his PIF. In his POE and PIF, Mr. Guttierez described the aggressors as simply "four subjects dressed as policemen" and stated that he "did not know whether the subjects were truly policemen or not"; however, at the hearing he was adamant that the aggressors were police officers. By way of explanation, the principal Applicant stated he feared accusing the police of his country since he did not know how Canadian border authorities might react and he did not want to be deported. In light of the fact that he was a university-educated person who also admitted to being familiar with Canada's welcome to refugees from his country several years before when it was at war, the tribunal found this explanation not credible.
[13] The tribunal also displayed skepticism that this kidnapping had occurred at all, in light of Mr. Guttierez's actions in the days immediately following the alleged kidnapping. According to the tribunal, Mr. Guttierez never tried to find out who the kidnapped woman was, either by looking in the papers or inquiring with the police. While the tribunal acknowledged the fact that there have been problems in the past with criminal behaviour and kidnappings by police officers, the tribunal noted that the police have also instituted ways to anonymously inform the PNC of suspected misconduct and kidnappings. The tribunal found the fact that Mr. Guttierez had never availed himself of any of these resources as further reason to disbelieve his story.
[14] The tribunal also found it difficult to believe that the principal Applicant "forgot" to mention a key fact in his POE: that he had lost some documents while running from his aggressors and that this was how the aggressors were able to track him down.
[15] Finally, the tribunal found Mrs. Flores' story entirely lacking in credibility since her behaviour (especially the fact that she continued to work at her job until her departure in June) not only lacked subjective fear but also plausibility. The tribunal thus found the Applicants' claim to be entirely unfounded:
"Given the ambiguous declarations of the claimant concerning the identity of his aggressors, given the little information he provided concerning the alleged kidnapping and given the important omission in his POE declaration regarding the loss of his personal documents, the panel concludes to a general lack of credibility on the part of the claimant. In addition, the panel finds that the claimant's five month stay in the United States without claiming refugee status undermines his subjective fear as well. His explanation that he did not know that country [the U.S.] could offer any protection is not acceptable.
Finally, the panel finds it very unlikely that the claimant knew nothing of his wife's whereabouts during the five months he spent in the United States. He declared he spoke to his mother regularly and that she had spoken to his wife's family since she knew of her intention to leave the country as well. It seems evident both claimants had planned to enter the country under less than clear motives."
SUBMISSIONS
The Applicants
[16] The Applicants claim that the tribunal did not adequately take into consideration the principal Applicant's explanation that he was fearful of Canadian immigration officials at the border upon his arrival in Canada and that this was why he did not specify that the kidnappers were police officers but rather that they were dressed as police officers. Only once the principal Applicant felt safe in Canada did he state that the kidnappers were police officers.
[17] The Applicants admit that, in his POE, Mr. Guttierez did forget to mention the loss of his documents, which allegedly enabled his aggressors to locate him in San Salvador, but point out that this information did appear in his PIF. The Applicants claim that it was unreasonable of the tribunal to place so much weight upon this and that the benefit of the doubt should have been weighed in favour of the principal Applicant. Since the principal Applicant did not at any time contradict himself (nor, the Court should note, his wife's version of events), the failure to report certain facts in his POE should not be held against the principal Applicant with regard to his credibility. The Applicants state that the tribunal therefore committed a reviewable error of law in rejecting the principal Applicant's explanations regarding the omissions between his POE and his PIF without further providing clear and precise reasons. The Applicants also state that the tribunal erred in relying too heavily upon the principal Applicant's initial declarations in his POE.
[18] The Applicants submit that the tribunal clearly erred in finding as a fact that the principal Applicant "had not presented any corroborating information concerning the alleged kidnapping" since Mr. Guttierez in fact testified that he did search the newspapers for verification of this incident to no avail. The tribunal also erred, according to the Applicants, by not giving more weight to Mr. Guttierez's explanations as to why the kidnapping may not have been reported, especially in light of the documentary evidence which supported his opinion.
[19] The Applicants claim that the tribunal erred in its assessment of the reasons the principal Applicant had remained in the United States for five months prior to making his refugee claim in Canada. The tribunal states Mr. Guttierez explained that "he did not know that country [the U.S.] could offer any protection"; however, the Applicant claims that he actually testified that he feared claiming refugee status in the U.S. since he had been advised by his friend that sometimes persons claiming refugee status were imprisoned.
[20] Finally, the Applicants claim that the tribunal erred in discrediting Mrs. Flores' story, and further misrepresented the testimony given by her, specifically in regards to her testimony as to why she continued to work for a few months before leaving for Canada. The tribunal stated simply that Mrs. Flores continued to go to her workplace, that she needed to work in order to raise the money to pay for her plane tickets, and that she had not been harassed at her workplace. The Applicant adds to this that she in fact testified that she was afraid to go to work but was accompanied to and from work on a daily basis by her mother and so, while she did continue to work, she took necessary precautions.
The Respondent
[21] The Respondent is of the opinion that since the tribunal did not make any patently unreasonable errors, the decision of the tribunal is not reviewable. The Respondent reminds the Court that issues of credibility are purely within the expertise of the tribunal to decide, and that absent any patently unreasonable findings, there is no reason to interfere with the tribunal's decision. The Respondent also states that the tribunal may prefer to believe documentary evidence over the Applicants' statements, and that it has no obligation to refer to every piece of evidence. The tribunal was entitled to gauge the credibility of the Applicants and their story on the basis of gaps revealed in the evidence, and the findings it made were open to it on the evidence. Finally, the Respondent claims that since the Applicants were assisted by legal counsel, they had ample opportunity to cure any defects revealed in the evidence.
ANALYSIS
Standard of Review
[22] Since the Applicants' argument concerns mainly findings of fact by the tribunal that led to a negative credibility finding, the standard of review should be that of patent unreasonableness:
[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable.
The tribunal's decision
[23] It seems that, in the present case, the tribunal has made some errors in some of its findings on the evidence before it.
[24] First, the tribunal found it to be an indicator of both of the Applicants' credibility, and especially that of the principal Applicant, that only in the testimony before the tribunal was it asserted that those persecuting the principal Applicant were police officers. The tribunal is quite concerned that in both his POE and PIF, Mr. Guttierez refers only to persons dressed as police officers, and is not convinced by his explanation that he was not sure if, at the border, he would not be sent back if he told this to the immigration officials. The error is that the main Applicant had factually corrected the identification of the kidnappers as police officers in his PIF.
[25] The tribunal was wrong in stating that the principal Applicant "had not presented any corroborating information concerning the alleged kidnapping" and that he did nothing subsequent to the witnessing of the alleged kidnapping on February 2 until his receipt of the first threatening phone call on February 5. A review of the transcript shows that Mr. Guttierez had in fact attempted to learn more about the alleged kidnapping but that there was no news reports to be found. He also gave reasons for why such a report might not have been reported, which was corroborated by some of the documentary evidence: that people are reluctant to report such matters for fear they will, in turn, become targets of the kidnappers.
[26] Having noted these errors, I have reviewed the remaining findings to see whether there was evidence to support them and if they justify the finding of non-credibility of the Applicants.
[27] I was impressed by the explanation of the loss of documents which was the bridge to link the principal Applicant to the consequences of having viewed the said kidnapping. I was also concerned about the explanation given by the principal Applicant as to why he did not apply for refugee status while in the U.S. for 5 months. Furthermore, I had some reservations concerning the fact that there was allegedly no communication between the two Applicants since the principal Applicant had left El Salvador. Finally, I find that there is an odd coincidence in the arrival of the Applicants in Canada at almost the same time and the respective filings of their refugee claims (within a day of each other).
[28] I have reviewed each of the findings on these points and have found them to be well-founded and reasonable. It is true that there are some questionable findings but overall, I believe that the findings adequately support a finding of non-credibility and that this is a reasonable decision.
[29] Counsel for both parties were asked to suggest questions for certification but they did not submit any.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is dismissed and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9365-03
STYLE OF CAUSE:
EDGAR ANTONIO ROMERO GUTIERREZ et al
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 21, 2004
REASONS FOR ORDER : The Honourable Mr. Justice Simon Noël
DATED: October 29th, 2004
APPEARANCES:
Mr. Micheal Goldstein FOR APPLICANT
Ms. Sylviane Roy FOR RESPONDENT
SOLICITORS OF RECORD:
Me Michael Goldstein FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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