IMM-1431-96
B E T W E E N:
GLENDA SANTANA CAMPOS and
REYNA ELIDA CAMPOS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Tribunal") wherein the Tribunal determined the applicants not to be Convention refugees within the meaning of subsection 2(1) of the Immigration Act1. The applicants' application was heard by the Tribunal on the 9th day of August, 1994. The date of the Tribunal's decision is the 27th day of March, 1996, almost 20 months after the matter was heard2.
The applicants are citizens of El Salvador. They base their claim to Convention refugee status on an alleged well-founded fear of persecution, if required to return to El Salvador, by reason of their membership in a particular social group, namely their family, and by reason of their political opinion, real or perceived.
The facts underlying this application may be briefly summarized as follows. In November of 1989, a brother of the applicants was killed by MFLN guerillas after being held in detention for 45 days. In the following years, the applicants and other members of their family received notes demanding that they join and support the MFLN. In October of 1984, another brother of the applicants was killed by the MFLN. In the following years, three brothers of the applicants and one sister all fled El Salvador. Three were found to be Convention refugees in Canada and the fourth in the United States. The applicants' only remaining sibling in El Salvador married, changed her name and moved to another village. The applicants remained in their own village to care for their aged and ill mother. Once in 1990, and again in 1991, one of the sisters was taken off a public bus by members of the MFLN and harassed. In late 1992, the applicants' mother died. In January 1993, the applicants' house was ransacked while they were away. In fear, the applicants moved to another town or village where they lived with an aunt. The applicants never sought protection from police or other governmental authorities out of fear that they would be considered spies for the MFLN. At their aunt's home, the applicants claimed to have been approached by a particular political candidate and party for support. They were threatened with unspecified consequences if they failed to do so. The applicants were never politically active.
Following the demand that the applicants support a political candidate and party, they concluded that they must leave El Salvador. They arrived in Canada on September 6, 1993 and shortly thereafter claimed Convention refugee status.
Counsel for the applicants submitted that the Tribunal erred in the following respects:
first, in determining that the applicants' story regarding the demand received shortly before they left El Salvador that they support a particular candidate and party was implausible ;
second, in failing to consider, or at least to mention, extensive documentary evidence that was before the Tribunal concerning country conditions that, he urged, favoured the applicants' claim;
third, by failing to analyze or even consider relevant case law on the issue of "particular social group";
fourth, by delaying for an unconscionable period of time before rendering its decision; and
fifth, by taking into account irrelevant considerations.
The Tribunal determined the applicants' evidence regarding the demand that they support a particular candidate and party to be implausible and an embellishment to support their claim. In Aguebor v. the Minister of Employment and Immigration3, Décary J.A. wrote:
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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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more identifiable, since the account appears on the face of the record. |
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On the record in this matter, I conclude that the Tribunal's implausibility finding was reasonably open to it.
The Tribunal's failure to comment on documentary evidence before it was unfortunate. That said, that failure was not a reviewable error. A review of the documentary evidence can only lead to the conclusion that these applicants, on the unique facts of their situation, do not face a serious risk of persecution.
The Tribunal determined that the applicants' family was capable of constituting a particular social group for the purposes of the definition "Convention refugee". That being said, the Tribunal went on to determine that the deaths of the applicants' two brothers were related to their employment with the government of El Salvador and not to their membership in their family. The Tribunal further found that other experiences to which the applicants were subjected were not directed to them as members of their family but were, at least in some cases, simply random acts. In the result, the Tribunal concluded that the applicants had not suffered persecution by reason of their membership in their family and were unlikely to be persecuted by reason of such membership if returned to El Salvador. I conclude that these findings were reasonably open to the Tribunal.
The delay in rendering the Tribunal's decision was indeed unfortunate. However, delay of itself, absent prejudice to the applicants, does not warrant granting relief to the applicants4.
Finally, I am unable to conclude that the Tribunal, in reaching its decision took into account any irrelevant consideration.
In the result, this application for judicial review will be dismissed.
Counsel for the applicants recommended that a question be certified on the issue of the delay by the Tribunal in issuing its decision. Counsel for the respondent recommended against certification on the ground that the law is clear on this issue. I am in agreement with the position of counsel for the respondent. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 30, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1431-96
STYLE OF CAUSE: GLENDA SANTANA CAMPOS ET AL.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 28, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: JANUARY 30, 1997
APPEARANCES:
Mr. Thomas R. McIver
For the Applicants
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD:
McIver & McIver
900-372 Bay Street
Toronto, Ontario
M5H 2W9
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1431-96
Between:
GLENDA SANTANA CAMPOS ET AL.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 Subsection 69.1(9) of the Immigration Act reads as follows:
(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) [in this matter, the applicants] is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister.
Although, as will be seen later in these reasons, the issue of delay arose in this matter, no argument was made before me that the Tribunal breached the statutory obligation provided by subsection 69.1(9).
3 (1993), 160 N.R. 315 (F.C.A.)
4 See Akthar v. Minister of Employment and Immigration (1991), 129 N.R. 71(F.C.A.) and Hernandez v. Minister of Employment and Immigration (1993), 154 N.R. 231 (F.C.A.)
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