Date:
20121001
Docket:
IMM-9303-11
Citation:
2012 FC 1155
Ottawa, Ontario,
October 1, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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GABINO OLEGARIO AGUILAR
ZACARIAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the August 3, 2011 decision of the
Refugee Protection Division of the Immigration and Refugee Board [the RPD or
Board] denying the applicant’s claim for refugee protection under section 96
and subsection 97(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA]. The applicant is a citizen of Guatemala who alleges he was a victim of
extortion and threats at the hands of the Mara Salvatrucha, or MS-13, gang [the
MS].
[2]
This
is the second time this matter has been before this Court. In a decision dated May
21, 2010, the RPD found the applicant to be a credible witness and accepted
that he had been a victim of MS threats and extortion, but dismissed his claim,
holding that section 96 of the IRPA was inapplicable as the victimization was
not based on a Convention ground and that section 97 was inapplicable because
the risk was a generalized one. Justice Noël vacated that decision in Aguilar
Zacarias v Minister of Citizenship and Immigration, 2011 FC 62, where he
found that the Board had erred in its interpretation of section 97 of the IRPA
because it failed to properly assess the personalized risk faced by the
applicant. Justice Noël remitted the applicant’s claim to a different member of
the RPD for re-determination.
[3]
In
its August 3, 2011 decision that is the subject of the present application for
judicial review, a different member of the RPD re-heard the case, decided that
the applicant lacked credibility and dismissed the claim for that reason. While
it was certainly open to the member to have reached a different conclusion from
the first member on the issue of credibility as the first decision was quashed
for all purposes (see, e.g. Miah v Canada (Minister of Citizenship and
Immigration), 2007 FC 2005 at para 8), I have determined that the reasoning
in the second decision is so erroneous that it must be set aside. Given the
deference which must be afforded to credibility determinations, it is
exceptional that they will be overturned; this, however, is a case where an
erroneous credibility finding requires intervention. As is more fully discussed
below, the RPD’s findings in this case are based on impermissible conjecture and
conclusions that contradict the evidence before the Board and thus cannot
stand. To understand why this is so, it is necessary to review the applicant’s
version of events and the Board’s decision.
Background
[4]
The
applicant claims that he was a vendor in an open air market in Guatemala, where he sold chickens. He says that he also worked at a restaurant chain in Guatemala. He alleges that a member of the MS, nicknamed “Gordo” or “Chubby” approached him
at the market about two and one half years year after he opened his stall,
demanded extortion payments, and thereafter visited him weekly to collect the
payments. The applicant claims that Chubby told him that if he did not
cooperate, someone close to him would be killed. He also asserts that over time
Chubby demonstrated increasing knowledge of the details of the applicant’s
family, which led the applicant to conclude that he and his family were being
watched.
[5]
The
applicant claims that he and a fellow vendor, Evedardo Vicente, eventually
reported Chubby’s extortion to the police. Chubby was imprisoned, but the
applicant says the extortion continued and intensified, as did the threats:
other members of the MS came to the market to collect payments and allegedly
told the applicant that Chubby knew it was the applicant who had reported the
extortion and that he and his friend, Vincente were “dead”.
[6]
After
Chubby was released from prison, members of the MS tracked Mr. Vincente and the
applicant to another market that the applicant claims they were visiting and
shot and killed Mr. Vicente. The applicant filed proof of Mr. Vincente’s
execution with the RPD. The applicant did not return to his market stall after
this incident but continued working at his other job in a restaurant until
approximately six months later when he alleges that Chubby came to the
restaurant looking for him. The applicant explained the situation to his
manager, was assigned to work in the back of the restaurant and was eventually
transferred to a different location of the restaurant chain. The applicant then
learned from managers at various other restaurant locations that Chubby had
come into their restaurants and asked about him. Finally in early 2008, the
applicant saw Chubby sitting inside the restaurant while he was working.
Scared, he never returned to work at the chain again.
[7]
The
applicant then moved his family to his in-laws’ village but continued to hear
warnings about the presence of the MS in such villages and their ability to
locate individuals. As a result, in May 2009, the applicant obtained a
temporary work permit and came to Canada, where he filed for refugee
protection.
Issues and
Standard of Review
[8]
In
the introduction to its decision, the Board made a passing
reference to the fact that state protection and an internal flight alternative
would have been available to the applicant but does not conduct any analysis whatsoever
of these issues. The failure to conduct any analysis deprives these findings of
transparency and they are therefore insufficient to overcome an otherwise
deficient decision (Guney v Canada (Minister of Citizenship and Immigration),
2008 FC 1134 at para 21). Thus, the only issue arising in this case is
whether the Board’s credibility determination withstands scrutiny.
[9]
As
noted, it is incontrovertible that credibility findings are reviewable on the
reasonableness standard and that significant deference is owed to credibility
findings of the RPD given its ability to directly observe the witnesses’ demeanour,
its expertise and its role as a finder of fact (see e.g. Aguebor v Canada
(Minister of Employment and Immigration) (1993), 160 NR 315, [1993] FCJ No
732 (CA) [Aguebor] at para 4; Singh v Canada (Minister of Employment
and Immigration) (1994), 169 NR 107, [1994] FCJ No 486 (CA) [Singh]
at para 3; Hemmati v Canada (Minister of Citizenship and Immigration),
2008 FC 383 at para 41; Cetinkaya v Canada (Minister of Citizenship and
Immigration), 2012 FC 8, [2012] FCJ No 13 at para 17; Rahal v Canada
(Minister of Citizenship and Immigration), 2012 FC 319 at para 22, [2012]
FCJ No 369 [Rahal]). However, as Justice Phelan noted in Njeri v Canada (Minister of Citizenship and Immigration), 2009 FC 291, [2009] FCJ No 350, “[D]eference
is not a blank cheque. There must be reasoned reasons leading to a justifiable
finding” (at para 12).
[10]
Dealing
more specifically with credibility findings that rest on plausibility
determinations, this Court has often cautioned that such determinations are
best limited to
situations where events are clearly unlikely to have occurred in the manner
asserted, based on common sense or the evidentiary record (see e.g. Giron v
Canada (Minister of Employment and Immigration), 143 NR 238, [1992] FCJ No
481 (CA); Chavarro v Canada (Minister of Citizenship and Immigration),
2010 FC 1119 at paras 30-32; [2010] FCJ No 1397). As was articulated by Justice
Muldoon in the oft-cited
case of Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776, [2001] FCJ No 1131 [Valchev]:
A
tribunal may make adverse findings of credibility based on the implausibility
of an applicant’s story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what
could reasonably be expected, or where the documentary evidence demonstrates
that the events could not have happened in the manner asserted by the claimant.
A tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions
which appear implausible when judged from Canadian standards might be plausible
when considered from within the claimant’s milieu (at para 9) [citations
omitted, emphasis added].
[11]
An
allegation may thus be found to be implausible when it does not make sense in
light of the evidence before the Board or when (to borrow the language of
Justice Muldoon in Vatchev) it is “outside the realm of what reasonably
could be expected”. In addition, this Court has held that the Board should
provide “a reliable and verifiable evidentiary base against which the
plausibility of the Applicants’ evidence might be judged”, otherwise a
plausibility determination may be nothing more than “unfounded speculation” (Gjelaj v
Canada (Minister of Citizenship and Immigration), 2010 FC 37
at para 4, [2010] FCJ No 31; see also Cao v Canada (Minister of Citizenship
and Immigration), 2012 FC 694 at para 20, [2012] FCJ No 885 [Cao]).
Analysis
[12]
In
this case, the Board did not respect these guiding principles and instead
engaged in impermissible speculation in rejecting the credibility of the
applicant’s claims. To a significant extent, its credibility determination
hinged on three implausibility findings it made. As discussed below, none of
them was reasonable.
[13]
In
the first instance, the Board found that it was implausible that
the MS would not have begun extorting the applicant “soon after” he began
selling chickens in the market. From the applicant’s own account, the extortion
began two and a half years after he started selling in the market. The Board
reasoned:
The
claimant began selling chicken as a market street vendor in [2004]. He
testified that he had never seen Chubby before June 2006 when the extortion
began. This is implausible given his own testimony that the Mara are everywhere
in his country, and have been, according to the objective evidence, since the
1990’s. I find, on balance of probabilities, that the local Mara would have not
begun extorting the claimant soon after he set up shop in 2004. Given their ubiquitous
and rapacious [sic] I find no plausible reason for them not to have
begun extorting him earlier. I therefore find his statement implausible. His
credibility is eroded.
(Decision
at para 29)
[14]
With
respect, this conclusion is unreasonable. The fact that the MS is ubiquitous
throughout Guatemala does not imply that they must be targeting every single vendor within
the country at the same time nor that they immediately target every vendor as
soon as he or she sets up a stall. It is not implausible that the applicant was
not targeted until the date he claims the extortion started and there is
nothing in the evidence from which the Board could reasonably have concluded
otherwise. Accordingly, this implausibility finding is not reasonable.
[15]
Second,
the Board held that it
was implausible that the MS would have come to the market to threaten the
applicant without killing him and Mr. Vincente, stating:
The
claimant’s own testimony, his exhibits, and the objective documentary evidence
all state that the Mara gangs are ruthless, extremely, violent groups who take
reprisals when crossed or betrayed. I therefore find it implausible that Mara
members would approach the claimant at his stall in the market, after Chubby’s
arrest and said that the claimant and his friend were “dead” and warn him that
Chubby was “really pissed at him.” First, it is implausible that the gang
members would give their intended, victims a warning. Second, as they were
armed, and as they are ruthless and violent, why did not they not simply kill
the claimant and his friend on the spot. For these reasons, I do not believe
such an encounter ever happened. The claimant’s credibility is diminished.
(Decision
at para 28)
[16]
The
applicant, however, alleges that the MS was still seeking to extort money
from him when they came to threaten him. Killing him would have eliminated
their ability to continue this extortion. In reaching its
conclusion, the Board committed a reviewable error by ignoring the applicant’s
reasonable explanation of what had occurred (Cao at para 12, cited
above at para 11). Moreover, it is not necessarily surprising that the MS would
have not killed the applicant and his friend in the middle of a busy
marketplace. This plausibility determination was certainly not one of the “clearest
of cases” as set out by Justice Muldoon in Valtchev (cited above at para
10) and was an inappropriate basis upon which to conclude that the market
encounter never occurred.
[17]
Third,
the Board pointed to the fact that two affidavits of market vendors supplied by
the applicant referred to Chubby as “El Pelon” (which translates as “the Bald
One”) rather than “Gordo”. The Board concluded that it was implausible that an
MS member would be called by two nicknames and thus viewed the affidavits as
undercutting the applicant’s credibility. In my view, this conclusion is flawed
as it is not implausible that a person might have, or be referred to by, two
nicknames. Moreover, the Board did not explore this apparent inconsistency in
its questioning of the applicant, other than noting the two nicknames. In the
circumstances, this is a further situation where the implausibility conclusion
reached is far from clear and has no foundation in the evidence. It is
therefore unreasonable.
[18]
In
addition to these implausibility findings, the RPD also set out other bases for
disbelieving the applicant’s version of events. However, several of these other
bases are without foundation.
[19]
More
specifically, the Board
first noted that there were inconsistencies in the applicant’s evidence given
at the first and second hearings regarding whether he and Mr. Vincente reported
the extortion to a security guard or to the police. While it its true that the
applicant (who testified through a translator) used the word “guard” during the
first hearing but stated that the report was made to the police during the
second hearing, he provided an explanation for this discrepancy, namely that
the police sometimes acted as the guards at the market and that on the day in
question when the report was made, the police were serving the role of market security
(see Certified Tribunal Record [CTR] at p 186). In support of its finding that
the applicant could not have reported the extortion to the police, the Board
referred to the documentation regarding typical police procedures in Guatemala,
which indicated that the police typically took statements when formal
complaints were made and reasoned that the complainant’s claim to have gone to
the police was not credible as no statement was taken. This, however, does not
necessarily follow for two reasons. First, the applicant does not claim to have
gone to the police station and filed a formal report: he claims to have
reported the incidents to the authorities on duty at the market. Thus, it is
not necessarily surprising that “official” procedure would not have been
followed, as the applicant did not follow the “official” channels. Second, and
more importantly, as counsel for the applicant argued, there was extensive
evidence on record to the effect that formal police procedures are often not
followed by the police in Guatemala. Therefore, the lack of a formal police
report does not undercut the applicant’s claim to have reported the extortion
to a member of the police, who was fulfilling the role of security guard on at
the market on the day the report was made.
[20]
In
a similar vein, the Board found it to be of concern that two of the
co-worker affidavits stated that the applicant did not complain to the police
and this undercut his claim to have reported the extortion to the police.
However, one of the affidavits states that the applicant did not report the
death threats (as opposed to the extortion) to the police. This is consistent
with the applicant’s testimony: he testified that he did not report the death
threats to the police due to fear of the MS. Thus, contrary to what the Board
found, there is no inconsistency in the evidence on this point. The other
affidavit is more general and is not inconsistent with his claim to have not
filed a formal police report about the death threats.
[21]
The
Board further pointed to a press report discussing Mr. Vicente’s murder. This
report states that the victim was talking to his brother when he was shot,
which the Board held contradicted the applicant’s claim that he and Mr. Vincente
ran away in opposite directions when they saw the MS and that Mr. Vincente was
shot a few minutes later. The Board additionally highlighted the fact that the
article fails to mention the applicant’s presence or the motive for the murder
(i.e. retribution for the complaints to the authorities). However, the fact
that the applicant would not make himself known to the media in no way
undermines his claim – if anything, detailed mention of the applicant in the
article might seem to contradict the applicant’s claim of attempts to hide from
the MS. The first alleged contradiction noted by the Board appears to be more
valid However, this point is insufficient to sustain a negative credibility
determination in circumstances like the present where so many other of the
bases for the credibility determination are without merit.
[22]
Finally,
the Board found that the applicant was not credible because his subjective fear
was not well-founded. It based this determination on the fact that the
applicant had only moved his family 40 miles from the city when he allegedly
felt his and their lives were at risk and because his family has not been
attacked subsequent to his departure. However, the record reveals that there
was good reason for the family to have moved to that area because the
applicant’s spouse and children would have the support of her family who lived
in the town. In addition, contrary to what the Board held, the fact that the MS
did not threaten the applicant’s family following his departure does not
undermine the credibility of the applicant’s version of events (although it
might well be relevant to whether the applicant might be at risk if returned to
El Salvador).
[23]
The
above-noted observations collectively underpinned the Board’s conclusion that
the key events involving the MS had not occurred and were intertwined with each
other. In such circumstances, a decision may be set aside as unreasonable, even
if peripheral points in the Board’s reasoning might withstand scrutiny, because
the central bases for the Board’s credibility determination are unreasonable (see
e.g. Calvera v Canada (Minister of Citizenship and Immigration), 2006 FC 1463
at para 27, [2006] FCJ No 1842; Zhuo v Canada (Minister of Citizenship and
Immigration), 2005 FC 1271 at paras 7, 21, [2005] FCJ No 154; Tighrine v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1783, 98
ACWS (3d) 180 at para 7).
[24]
I
would additionally note that I find the Board to have employed an inappropriate
understanding of demeanour in its analysis. The RPD buttressed its negative
credibility determination by noting that during the hearing the applicant
sat with his arms crossed and appeared “sullen and arrogant” which was “not an
attitude one would reasonably expect from someone asking a foreign country to save
his life” (Decision at para 35). While this Court has recognized
that the Board is well-positioned to assess a claimant’s demeanour in its
credibility determinations, demeanour is intended to encompass the way in which the
claimant responds to questions, such as whether the claimant appears uncertain
or hesitates. For instance, in Gjergo v Canada (Minister of Citizenship and
Immigration), 2004 FC 303 at para 22, 131 ACWS (3d) 508, Justice Harrington
wrote, “This Court has previously held that the panel may take into account the
demeanor of an applicant during his testimony. When the witness has difficulty
giving adequate and direct answers, the panel may make a negative credibility
finding.” (See also Rahal at para 45, cited above at para 4). In contrast,
overly subjective conclusions based on an individual’s posture or perceived
attitude are not within the appropriate purview of a credibility assessment.
[25]
Thus,
the Board made findings that went to the core of the applicant’s claim that are
no more than “unfounded speculation” and that lack an evidentiary basis. Since
the Board’s conclusion that the applicant was not at risk was based on his
lack of credibility, it is unreasonable and must be set aside.
Conclusion
[26]
For the above reasons, this application for judicial review is allowed. No
question has been proposed for certification under section 74 of the IRPA and
none arises as this decision turns completely on the facts.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination;
2. No
serious question of general importance is certified; and
3. There
is no order as to costs.
"Mary J.L.
Gleason"
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