Date: 19990901
Docket: IMM-6257-98
BETWEEN:
DOMINGO ESCOBAR AMAYA
JEYSON LINDOLFO ESCOBAR
EMILSE JAHAIRA ESCALANTE ESCOBAR
IRIS LASTENIA ESCALANTE ESCOBAR
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division, dated November 2, 1998, which determined that the applicants are not Convention refugees.
FACTS
[2] The applicant, his wife and their two minor children are citizens of Honduras. They left their country on March 9, 1995 for El Salvador, then Guatemala, Mexico and the United States where they stayed for approximately nine months before they arrived in Canada on December 30, 1995 and claimed refugee status.
[3] Briefly, the applicant, a merchant who had smuggled goods between El Salvador and Honduras for three years without any difficulty, claims that he became a victim of extortion when a person by the name of Hernandez was named head of the local military post. Hernandez allegedly began to collect "taxes" which the applicant agreed to pay.
[4] The applicant testified that Hernandez wanted to murder him to steal the money he was transporting back and forth, but that Hernandez and his civilian accomplices were forced to drop their plan when, in February 1995, they found that the applicant had friends accompany him.
[5] On March 9, 1995, while returning from El Salvador, soldiers following orders from Lieutenant Hernandez seized the applicant"s goods and Hernandez accused the applicant of smuggling, being a communist and having ties with extremists. It was at this point that the applicants allegedly left Honduras.
BOARD"S DECISION
[6] The Board determined that the applicant was not a Convention refugee.
[7] The Board concluded that the applicant had been the victim of the criminal acts of Lieutenant Hernandez and that his fear of returning to Honduras was completely unrelated to one of the five grounds set out in the definition of Convention refugee.
APPLICANT"S ARGUMENTS
[8] The applicant essentially raises two arguments to justify the intervention of this Court:
| (a) First, the applicant suggests that member Davey was inattentive and fell asleep during the hearing; the applicant suggests that the questions the member asked at the very end of the hearing confirm her lack of attention during the hearing. |
| (b) The applicant also suggests that the Board erred because it did not assess the merit of the applicant"s fear of persecution by evaluating the objective and subjective components of his claim. |
[9] The applicant believes that the Board erred in mistakenly finding that there was no link with the grounds of the Convention and that the evidence is very clear that the army accused the applicant of having ties with Salvadoran extremists and communists and acting as a courier between El Salvador and Honduras. He also adds that one of the purported heads of the directorate of criminal investigations (DIC), Julio Hernandez, was looking for the applicant, saying that he had a file on his extremist activities.
[10] The applicant also suggests that the documentary evidence confirms that members of the security forces are guilty of several extrajudicial executions and that the impunity of the soldiers is exacerbated by the traditionally weak and corrupt judicial system in Honduras.
RESPONDENT"S ARGUMENTS
[11] In general, the respondent suggests that the evidence adduced allowed the Board to find as it did.
[12] The claimant essentially admits that he smuggled goods between El Salvador and Honduras and was able to conduct this illegal trade for more than 3 years without any trouble.
[13] The situation changed with the arrival of a new soldier by the name of Julio Hernandez as head of the military post at Mapulaca.
[14] It was then that because of the applicant"s illegal trade, the soldiers started to demand money for continuing his illegal activities.
[15] The Board properly considered that the applicant had been the victim of criminal acts by members of the armed forces and that his fear of returning to Honduras was completely unrelated to one of the five grounds set out in the Convention.
[16] With respect to the argument that one of the members lost interest in the case or fell asleep, the respondent suggested that a careful reading indicates that the member in question intervened more than ten times during the hearing and that there is nothing to support the applicant"s suggestion that the member in question showed no interest.
ANALYSIS
[17] At the outset, I believe it is worthwhile to state immediately that there is absolutely no support in the evidence adduced before the Court for the applicant"s suggestion that one of the members lost interest in the case and even fell asleep during the hearing. The many interventions by the member, the questions asked as well as the decision signed by both members of the Division establish exactly the opposite.
[18] With respect to the second argument raised by the applicant, it seems worthwhile to repeat that the claimant has the burden of establishing that his fear, if it exists, is related to one of the grounds set out in the definition of Convention refugee.
[19] It seemed clear to the members of the Refugee Division that the incidents which supposedly led to the applicants" departure had more to do with the illegal activities of the principal claimant, who admitted that he was a smuggler, and that these incidents were not related to one of the grounds set out in the definition. As Mr. Justice Joyal stated in Morrisseau Alexandre v. M.E.I ., A-802-92, August 22, 1994:
| . . . it seems clear to me that in any case, whether the persecution is by acts of violence, discriminatory acts, assaults, threats or harassment, in short whatever the persecution, it has to be based on grounds of race, nationality, political opinion or membership in a particular social group. |
[20] Therefore, in light of the evidence adduced, it was not unreasonable for the Refugee Division to find as it did. There is nothing on the record which can persuade me that the Refugee Division erred in making its decision.
[21] For all of these reasons, the application for judicial review must be dismissed.
[22] Counsel for the applicant submitted the following question to be certified:
[TRANSLATION]
| Are members required to mention in their decision all of the material facts which support the claim advanced by the claimant? |
[23] Citing supporting case law, counsel for the respondent submitted that the Court of Appeal and the Supreme Court have already considered this question on many occasions.
[24] As I agree with the respondent"s submission that this question has already been considered on many occasions in the case law and that this does not constitute a serious question to be certified, no question will be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
September 1, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6257-98
STYLE OF CAUSE: DOMINGO ESCOBAR AMAYA et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUE.
DATE OF HEARING: AUG. 11, 1999
REASONS FOR ORDER OF BLAIS J.
DATED SEPT. 1, 1999
APPEARANCES:
FOR THE APPLICANTS
LISA MAZIADE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
SERBAN MIHAI TISMANARIU
FOR THE APPLICANTS
MICHÈLE JOUBERT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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