Date: 20101210
Docket: IMM-1482-10
Citation: 2010 FC 1271
Ottawa, Ontario,
December 10, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ELENA YOLANDA DURAN and
FRANCISCO OSWALDO ALVAREZ DURAN
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the written decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 23 March 2010 (Decision), which refused the
applications of both Applicants to be deemed Convention refugees or persons in
need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Female and Male Applicants, a mother and her adult son, are citizens of El Salvador. The Female Applicant
claims that in 1995 her son-in-law was abducted because of his involvement with
the Farabundo Marti National
Liberation Front (FMLN), a left-wing political party. After his release, he and
the Female Applicant’s daughter were subjected to threats and other attacks in
1998 and 2001. In 2002, the daughter and son-in-law were granted refugee
protection in Canada, at which time the Applicants and
another son, Douglas, moved into the daughter’s house to finish out her lease.
[3]
The
Applicants allege that, in April 2003, men invaded that house, seeking the
whereabouts of the daughter. The Female Applicant said that they threatened her
when she refused to co-operate with them. She also stated that, based on the
way they spoke, their violence and their height and haircuts, she knew that
they were police officers.
[4]
In
May 2003, two men shot the Female Applicant but she escaped serious injury. The
Applicants stated at the hearing that they believe the shooting to be related
to the daughter and son-in-law’s situation. Shortly after the incident,
however, the Female Applicant filed a police report, saying that the shooters
did not speak to her, that she did not know why she had been targeted and that
the culprits may have been thieves.
[5]
The
Applicants and Douglas relocated to another city. They experienced no further
problems until 2007, when a police contact informed them that the son-in-law’s abductors
had been released from prison. At that time, the daughter’s child was
considered at risk and was sent to Canada.
[6]
In
February 2008, two men struck the Male Applicant in the head with a gun,
causing him to seek medical treatment. The family moved houses yet again. In
May 2008, Douglas went missing and has
not been heard from since. The Applicants, fearing for their own safety, fled
the country.
[7]
On 9
June 2008, the Female Applicant entered Canada via the United States and immediately made a
refugee claim. On 5 August 2008, the Male Applicant entered Canada via Mexico and the United States and also immediately
made a refugee claim. The RPD heard both claims together on 1 March 2010;
neither Applicant was represented by counsel. The RPD rendered an oral decision
on the same day and a written Decision on 23 March 2008. Neither Applicant was
granted Convention refugee status under section 96 of the Act or status as a
person in need of protection under section 97 of the Act. This is the Decision
under review.
DECISION UNDER REVIEW
[8]
The
RPD’s Decision was based on two factors: a negative credibility finding with
respect to the Female Applicant; and the failure of both Applicants to
establish a nexus between what had happened to the daughter and son-in-law and what
allegedly had happened to them after the daughter and son-in-law emigrated from
El Salvador.
[9]
The
RPD found the Female Applicant’s evidence at the hearing to be “vague,
confusing and contradictory.” The Decision notes that the Female Applicant “rarely”
responded to questions directly, which required the RPD to re-ask questions
several times.
[10]
The
RPD did not accept the Female Applicant’s statement that the crimes which she
and her family had suffered were committed by police officers. For example,
there was insufficient evidence to prove that police had executed the home
invasion. The perpetrators were not in uniform, they did not identify
themselves as police and they did not demonstrate behaviour that would
distinguish them as anything other than common criminals.
[11]
Also,
the Female Applicant’s oral evidence regarding the abduction of her son-in-law was
contradicted by documentary evidence in the form of a newspaper article, which
the Applicant herself said was accurate. Although she asserted that the abduction
was politically motivated, the article reported that the motivation was “purely
financial.” And while she stated that the abductors were police officers, the
article identified them as members of a “criminal ring.” The RPD reasoned that,
since the article included the abductors’ names and their photographs, it would
likely also have pointed out that they were members of the police force had
that been confirmed. The fact that the abductors had been arrested and jailed
was seen by the RPD as further proof that they were not police officers and had
no connection to the police.
[12]
The
article also reported that the abductors had been arrested in 1995. The Female
Applicant stated that they were released in 2007 which, the RPD concluded,
would have made it impossible for them to have been the same people who shot the
Female Applicant in 2003.
[13]
Finally,
at the hearing, the Female Applicant stated that the 2003 shooting was linked
to the political situation involving her daughter and son-in-law. This contradicted
her statements to police and to immigration officials that she did not know who
the culprits were or why she had been targeted.
[14]
The
RPD found that the Male Applicant’s evidence that he was assaulted with a gun
also was too weak to establish a link to the daughter and son-in-law; his
assertion that there was such a link was mere speculation. The Male Applicant
could not identify who the attackers were or why they had attacked him.
[15]
Similarly,
there was no evidence to support a connection between the disappearance of Douglas and the political troubles
of the daughter and son-in-law. No one knows why Douglas disappeared or who, if
anyone, was responsible.
[16]
Ultimately,
the RPD found that, contrary to their claims, the Applicants were not victims
of a political, police-related conspiracy but rather were “victims of a series
of violent attacks that [were] … not connected to … other family members.” There
was insufficient evidence to establish a nexus between the daughter and
son-in-law’s political troubles and the events described by the Applicants. With
respect to the other Convention grounds, they did not fear anyone in El Salvador on the basis of their
nationality, race or religion, and their status as victims of crime alone could
not form the basis of their membership in a particular social group. Although
the family does qualify as a social group, it cannot apply in the absence of a
nexus.
[17]
Having
dealt with the section 96 claims, the RPD addressed the section 97 claims. It
found, based on the documentary evidence and past jurisprudence, that the
Applicants did not face a personalized risk in El Salvador. In that country murder is, by some
standards, an epidemic. Extortions, theft and abduction are pervasive. These
are generalized risks faced by everyone in El Salvador. Because the Applicants did not satisfy
their burden of adducing sufficient evidence to establish a claim under either section
of the Act, their claims were rejected.
ISSUES
[18]
The
Applicants raise the following issues:
1. Whether the RPD erred in
its credibility findings;
2. Whether the RPD
misinterpreted or ignored significant evidence;
3. Whether the RPD based
its Decision on conclusions that were unsupported by the evidence.
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are relevant to this application:
|
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; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
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;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[20]
The Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[21]
The RPD’s decision is
based, in part, on its assessment of the Applicants’ credibility. The
determination of credibility is within the RPD’s expertise. For this reason,
credibility findings attract a standard of reasonableness on review. See Aguirre
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
571, [2008] F.C.J. No. 732 at paragraph 14.
[22]
The Applicants have also brought an issue before the Court
concerning the RPD’s treatment of the evidence. In considering whether the RPD ignored
material evidence, misunderstood the evidence or considered irrelevant evidence,
the appropriate standard is reasonableness. See Dunsmuir,
above, at paragraphs 51 and 53.
[23]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should intervene
only if the Decision was unreasonable in the sense that it falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law.”
ARGUMENTS
The Applicant
Credibility Findings Failed
to Consider Psychological Frailty
[24]
The
Applicants argue that the RPD’s credibility assessment of the Female Applicant
failed to take into account her psychological and emotional problems, as set
out in the February 2010 counseling assessment of Fanny Oliphant, a family counselor
with the Calgary Immigrant Women’s Association. Ms. Oliphant met with the
Female Applicant 16 times and reported, inter alia, the following
symptoms of psychological distress: confusion, emotional distress, high levels
of anxiety, memory difficulties, sleep difficulties and possible Post Traumatic
Stress. Not only did the RPD fail to take the counseling assessment into
account, it failed even to address it.
[25]
The
RPD also failed to consider that neither of the Applicants was represented by
counsel at the hearing and that the Female Applicant, in particular, had
difficulty presenting her case due to her psychological frailty.
Evidence Supports a
Finding of Nexus
[26]
The
Applicants argue that the nexus between the political persecution suffered by
the Female Applicant’s daughter and son-in-law and the violence suffered by the
Applicants is obvious, based on the evidence. Family members were previously
attacked; it stands to reason that this is directly related to the present
attacks. The RPD’s finding that the present attacks represent nothing more than
“random acts of crime” is, in the Applicants’ view, illogical, preposterous and
indicative of the RPD’s deficient assessment of the documentary evidence.
[27]
The
persecution that they have endured due to their family connection to the
daughter and son-in-law clearly locates the Applicants’ claims within the
category of “membership within a particular social group” under section 97. The
RPD erred in failing to find such a nexus.
The Respondent
Credibility
Findings Are Reasonable and Deserving of Deference
[28]
The RPD’s
determinations regarding credibility are deserving of deference. As Justice
Simon Noël observed in Ankrah v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 385 (T.D.) at paragraph 7: “This Court must be most
careful not to substitute its decision for that of the Tribunal, especially
where the decision is based on an assessment of credibility.”
[29]
The
RPD’s credibility findings with respect to the Female Applicant are reasonable
in light of her vague and confusing responses and the number of contradictions between
her oral evidence at the hearing and the documentary evidence, namely the
police report on the shooting incident, the newspaper article and the record of
her interview with immigration officials.
Court Should Not
Re-weigh the Evidence
[30]
The
Respondent argues that the Applicants simply disagree with the RPD’s findings
of fact and its interpretation of the evidence. However, the RPD is an expert
panel charged with determining precisely the kind of questions that were
determined in this case. It is not the role of this Court to re-weigh the
evidence. See Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paragraphs 4, 46, 59, 61; Dunsmuir,
above, at paragraphs 47-49.
[31]
Nexus
is a required element that must be proven in every refugee claim. It is the
applicant’s burden to prove that there is a link between his or her claim and
one of the five Convention grounds enumerated in section 96. See Rizkallah
v. Canada (Minister of Employment
and Immigration),
[1992] F.C.J. No. 412 (F.C.A.). In the instant case, the Applicants failed to
adduce sufficient evidence to establish that link.
[32]
With
respect to the section 97 analysis, the RPD carefully considered the country conditions
in El
Salvador
with specific focus on the pervasiveness of criminal organizations and the
severe violence that such organizations mete out to the citizenry. It was
reasonable for the RPD to find that the risk that the Applicants face is not a
personalized risk but the same generalized risk faced by their fellow citizens.
For this reason they are not entitled to protection under section 97.
ANALYSIS
[33]
The
Applicants’ grounds for reviewable error are contained in their written
submissions and counsel’s oral presentation at the hearing of this matter. Some
of them suggest that the Applicants simply disagree with the Decision.
[34]
For
example, the Applicants assert that the RPD “fail[ed] to consider all possible
grounds for claiming refugee status,” even those not raised by the Applicants.
Nowhere, however, do the Applicants say what other possible grounds for refugee
status were before the RPD on the present facts. Hence, it is not possible for
the Court to see what reviewable error may have occurred in this regard. There
is no obvious alternative ground that suggests itself to the Court, and the
Decision itself says that the RPD finds “there is no nexus to a Convention ground.
That is to say, you did not fear these people on the basis of your nationality,
race, religion or political opinion. Nor do I find that you are members of a
particular social group in terms of your fear.” This indicates to me that the
RPD looked for all possible grounds of connection.
[35]
The Applicants
also say that the RPD “failed to take into consideration the fact that the
claimants were ‘unrepresented’ claimants with serious psychological/emotional
problems and more care ought to have been afforded to the principal [female] claimant.”
But there is no evidence of a lack of care in this regard. The RPD simply could
not find a connection between what had happened to the Applicants and the
earlier experience of the daughter and son-in-law.
[36]
The Applicants’
strongest point is that the RPD fails to refer specifically to the counselling
assessment dealing with the state of mind and frailty of the Female Applicant
so that, in accordance with the principles enunciated in Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35,
[1998] F.C.J. No. 1425, the Court should infer that the assessment was
overlooked.
[37]
The assessment,
of course, does not impact any of the specific findings regarding the Male Applicant.
[38]
The
central finding in the Decision is that the Applicants failed to establish, on
an objective basis, that anything that may have happened to them in El Salvador could be connected with
the experiences of the daughter and her husband, so that there could be no
nexus to a Convention ground.
[39]
In
order to try and make that connection the Applicants went back to events in
2003 as well as events from 2007 and onwards. There was no objective evidence
of a connection to a refugee ground. The Applicants were, if anything, victims
of generalized crime. It was not just the Female Applicant’s inconsistent
testimony that caused this claim to fail. Even if she was confused at the
hearing, there was no objective evidence before the RPD of a link to a Convention
ground. This finding is not contradicted by the counselling assessment. Hence,
in my view, there was no need to reference the assessment specifically.
[40]
Counsel
also raised a new point at the hearing that the RPD failed to take into account
the counselling assessment and the risks to the Female Applicant’s health if
she is returned to El
Salvador. In
my view, however, there is nothing in the assessment that would bring the
Female Applicant within the risks set out in section 97 of the Act. She is not
in need of protection from torture, death, or cruel and unusual treatment or
punishment. The risks to the Female Applicant’s health, which the Applicants are
now belatedly raising, belong to a humanitarian and compassionate (H&C)
analysis and there is nothing on the record to suggest that the Applicants
cannot make an H&C application and they will be able to raise the counselling
assessment at the appropriate time. Just because the Applicants are not Convention
refugees does not mean that they do not have other avenues available to them if
they wish to remain in Canada. This does not give rise to a reviewable error in
this application.
[41]
The
Applicants also make assertions that are simply not borne out by an examination
of the Decision in the record. For example, they say that “the Board member has
failed to properly analyse the documentary information” on the nexus issue but,
in the end, it is clear that the Board examined all of the evidence on this
issue and came to a conclusion with which the Applicants disagree. This is a
matter that involves the weighing of evidence. The Applicants are simply asking
the Court to weigh it again and come to a conclusion that favours them. This is
not the role of the Court in judicial review. In Aguebor v. Canada (Minister of Employment
and Immigration)
(1993), 160 N.R. 315, Justice Robert Decary of the Federal Court of Appeal
observed:
4. 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 reviewl
Relying upon this reading in Petrova v.
Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 613 (FC),
I stated:
55 The Court should not seek to reweigh evidence before the
Board simply because it would have reached a different conclusion. As long as
there is evidence to support the Board's finding of credibility and no
overriding error had occurred, the decision should not be disturbed.
[42]
Given
the evidence before the RPD, its analysis of nexus was appropriate and
reasonable. The Applicants’ disagreement with the RPD’s assessment of the
weight assigned to evidence is not a ground on which to set aside a decision
for reviewable error. See Singh v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1146, [2003] F.C.J. No. 1451 at paragraph
11.
[43]
The Applicants
are naturally disappointed with the Decision, but the Decision is transparent
and intelligible and falls within the range of possible, acceptable outcomes
which are defensible in respect to the facts and law. See Dunsmuir,
above, at paragraph 47.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed;
2.
There
is no question for certification.
“James Russell”
Judge
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