Docket:
IMM-5327-11
Citation:
2012 FC 326
Ottawa, Ontario, March 20, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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DINA DEL CARMEN HENRIQUEZ DE UMAÑA
MARIO ANTONIO UMAÑA
HERNANDEZ
MARIO ANTONIO UMAÑA
HENRIQUEZ
DIANA MILAGRO UMAÑA
HENRIQUEZ
EDUARDO JAVIER UMAÑA
HENRIQUEZ
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Applicants
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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]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated July
8, 2011, finding that the applicants were neither Convention refugees nor
persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow, the application is granted.
Facts
[2]
The
applicants are citizens of El Salvador. The adult male applicant, Mario
Antonio Umaña Hernandez (applicant), was extorted and threatened by the Maras
Salvatruchas (MS) after he and his wife, Dina Del Carmen Henriquez de Umaña,
attended the funeral of a friend’s son. The friend’s son had been killed after
he resisted extortion demands from a gang. The MS contacted the applicant
regularly demanding money and threatened him and his family if he went to the
police.
[3]
The
applicant paid the MS $300 each month from July 2008 until April 2009. Subsequently
there were incidents in which one time payments were demanded, sometimes with
the promise that the extortion would end if they paid. In September 2009, the
applicants left their home and stayed with friends or with a relative, trying
to avoid the MS. However, they continued to receive threats.
[4]
When
the applicants learned that a businessman that worked near the applicant’s
business was killed and one of his daughter’s classmates was kidnapped, the
applicants decided to flee El Salvador. They left on October 17, 2009, staying
for three weeks in the United States before coming to Canada and making refugee claims at the border.
Decision Under Review
[5]
In
the reasons for its decision dated July 8, 2011, the Board made four separate
findings upon which the claims could be refused: the applicant was not
credible; there was a viable internal flight alternative (IFA) in La Union; the
risk faced by the applicants was generalized and state protection was available
in El Salvador. The Board also stated at the outset that there was no nexus to
a Convention ground.
Credibility and
Subjective Fear
[6]
The
Board found that the applicant was not credible. Beyond the fact that the
applicants are from El Salvador and came to Canada after travelling through the
United States, the Board found little if anything the applicant said to be
believable.
[7]
The
Board noted that the applicant stated in oral testimony that he did not know if
other businesspeople were extorted because people handle these matters
privately. The Board found this to be inconsistent with the applicant’s Personal
Information Form (PIF) narrative stating that he knew his friend’s son was
killed because his friend failed to give in to extortion demands.
[8]
The
applicant explained that his friend had told him about this because they were
close. The Board rejected this explanation as unreasonable and drew a negative
inference, finding that this aspect of the applicant’s evidence went to the
core of his claim. On the basis of this inconsistency, the Board found that
the applicant had neither been extorted nor threatened and therefore had no
subjective fear.
[9]
The
Board went on to find it “improbable” that the applicant would be able to run
his business for 13 years, from 1995 to 2008, before experiencing any problems
with the MS. The Board found that if the applicant did have problems with
them, they would have occurred earlier. The Board also expressed its confusion
as to why the applicants would continue to be threatened if they were paying
the money as demanded. The Board found the applicant’s explanation that each
time they called for money, “they would remind him who they are” to be evasive.
[10]
The
Board accorded very little weight to the letters confirming what the applicants
have said they experienced from friends, their Bishop, a Member of Parliament,
the school teacher and the applicant’s secretary. The Board also took issue
with the fact that the applicant did not produce one of his expired passports,
because it would have shown if the applicant had done any other traveling than
he claimed to have done.
Internal Flight
Alternative
[11]
The
Board found that the applicants had a viable IFA in La Union. After reviewing
the test for whether there is an IFA the Board stated at paragraph 43:
In fact, when [the applicant] was asked how many
times he had been to La Union, he said on a number of occasions. He was asked
if he had any problems in La Union; he replied no. The panel notes that the
claimant has an obligation if an IFA exists to seek refuge there. But despite
having gone to La Union on a number of occasions without experiencing any
adverse incidents there, the claimant did not attempt to resettle in La Union
or any other city in El Salvador.
[12]
The
Board recounted the applicant’s explanation that he could not relocate to La
Union or anywhere else because the MS are organized and the country is small
and they would be able to find the applicants anywhere. The applicant
explained that the MS had members in all cities and had infiltrated various
offices. The Board concluded that notwithstanding the applicant’s testimony,
there was an IFA in La Union.
Generalized Risk
[13]
The
Board also found that the risk alleged by the applicants in terms of extortion
and violence from the MS is a risk faced generally by individuals perceived to
have money in El Salvador, and therefore the claim under section 97 failed. The
Board reviewed the jurisprudence on the test under section 97, as well as the
documentary evidence on the MS and its activities. The Board then restated its
finding that the risk was one faced generally by all individuals in El Salvador perceived to be wealthy.
State Protection
[14]
The
Board reviewed the principles in assessing the availability of state protection.
It noted that the applicants never went to the police, because, according to
the applicant, the MS has infiltrated the police and making a complaint would
put him at risk.
[15]
The
Board then noted the existence of certain bodies that take complaints about
police officers’ misconduct and found no evidence that these entities would not
help the applicant if he did not trust the police and sought help from them. The
Board then reviewed new legislation to address police corruption. The Board
also reviewed some general facts about El Salvador and its police and security
regimes.
[16]
The
Board found that the applicant was obliged to seek domestic protection before
seeking international protection, and he elected not to do so, nor did he seek
protection from any other authorities. The Board was not persuaded that
protection would not have been reasonably forthcoming based on the documentary
evidence. The Board then reviewed more facts about the policing in El Salvador.
[17]
The
Board acknowledged that El Salvador is one of the most violent countries in the
world, with a reported 12 homicides per day, 60% of which are attributable to
the MS and other gangs. The Board found that the state was making serious
efforts to combat gang violence, including five programs related to the gang
problem. The applicants’ claims were therefore refused.
Standard of Review and Issue
[18]
The
issue raised by this application is whether the Board’s decision is reasonable;
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[19]
The
Board’s decision includes four independent findings, any one of which, if
reasonable, would have been sufficient to refuse the applicants’ refugee claims.
Thus, the applicants were tasked with a heavy burden in this case, as their
application could be dismissed, in theory, if one of those four findings were
found reasonable. However, as discussed below, the findings on IFA, state
protection and section 97 are inherently linked to and dependant upon, the
credibility determinations. Therefore, in this case, an error in one taints
the others. I find that the Board’s decision on credibility cannot be upheld and
the three other conclusions fall within it.
Credibility
[20]
The
length and detail of the credibility analysis suggests this was the principal
basis on which the claims were refused, particularly since, without an
acceptance of the applicant’s evidence as credible, other elements of the
claims could not be established. The Board based its negative credibility
finding on perceived inconsistencies, implausibilities and evasive answers. However,
in my view, none of these findings were supportable and were the product of
microscopic analysis of the applicant’s evidence.
[21]
I
agree with the applicant that the following findings were microscopic and the
Board found inconsistencies and evasions where none existed. I will review
only some of the findings that were critical to the decision:
•
The
alleged inconsistency regarding the applicant’s knowledge of other businessmen
being extorted, if it can be called an inconsistency, is a minor one and is not
a sufficient basis to reject the entirety of the applicant’s allegations of
extortion. Furthermore, I can find nothing unreasonable in the applicant’s
explanation that he knew about his friend’s troubles because they were close
friends; indeed he had attended his friend’s son’s funeral. The Board
dismissed this otherwise logical explanation without any reason.
•
The
Board found that the applicant was evasive when he explained that the MS
continued to threaten him when demanding money because each time they asked for
money, they wanted to remind him of who they were. The Board does not explain
how this qualifies as evasive and I cannot see how it could be so
characterized.
•
The
Board drew a negative inference because at one point the applicant spoke in the
third person by saying that if one does not comply the MS threatens people with
death. I agree with the applicant that this is microscopic examination of the
applicant’s evidence and is not permissible; Attakora v Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA).
•
The
Board’s finding that it was improbable that the applicant could have operated
his business without problems for 13 years and that if he had been extorted it
would have occurred earlier, is problematic. By implication, the Board
presumes that a businessperson is either extorted as soon as they open for
business, or they are guaranteed to operate indefinitely without interference?
The Board cannot find it improbable that a businessperson would be extorted by
the MS and there is no factual or admissible opinion evidence that extortionists
only target businesses upon opening.
[22]
A
negative inference was drawn regarding the applicant’s failure to produce one
of his expired passports. The Board evidently inferred that the applicant was
hiding something in this passport such as undisclosed travel between 2005 and
2009. In the absence of relevant, credible evidence which supported, on a
balance of probabilities, the inference that the applicant had traveled abroad
during the period in question, the Board’s finding is speculative. These
statements amount to conjecture, which “is of no legal value, for its essence
is that it is a mere guess”: Jones v Great Western Railway Co. (1930),
47 TLR 39 at 45 (HL), cited in Canada (Minister of Employment and
Immigration) v Satiacum, [1989] FCJ No 505 (CA); and see, more recently, Cornejo
v Canada (Minister of Citizenship and Immigration), 2012 FC 325. Fairness
would also require that the Board put the proposed conclusion or inference to
be drawn from the missing document to the claimant.
[23]
In
sum, the Board’s decision cannot be upheld on the basis of its credibility
finding.
Internal Flight
Alternative
[24]
The
Board’s analysis of IFA fails to properly apply the test for an IFA. The
first prong of the test is whether there is a serious possibility of the
claimant being persecuted or subject to risk in the IFA location; Campos
Shimokawa v Canada (Minister of Citizenship and Immigration), 2005 FC 445
at para 25. However, the Board simply states that the applicant had been to La
Union on several occasions and he was obligated to seek refuge there before seeking
international protection. At no point does the Board directly address the
question required to make and IFA finding.
[25]
The
Board also fails to explain why the applicant’s evidence regarding the proposed
IFA is rejected. The applicant stated that the MS is well organized, has
infiltrated various offices, and would be able to locate him anywhere in the
small country. The Board summarizes this evidence and concluded that
notwithstanding that evidence, it finds there is an IFA. The Board’s decision
cannot be upheld on the basis of its IFA finding.
Generalized Risk
[26]
The
Board found that the applicants did not face a personal risk that is not faced
generally by individuals in El Salvador. This is a fact-based determination
and requires an individualized inquiry in each case; Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA 31 at paragraph 7; see also Vivero
v Canada (Citizenship and Immigration), 2012 FC 138). Thus, the analysis
of whether a risk is generalized is closely linked to the credibility of a
claimant’s testimony, because a determination of this issue will depend on the
facts that are accepted by the Board.
[27]
As
credibility findings of the Board were unreasonable, it is not possible to
uphold the decision based on the finding of generalized risk because the
applicant’s evidence regarding the risk was not accepted. It is not possible
to know whether, absent the errors in the credibility analysis, different
findings of fact would have been made that would give rise to a finding of
personal risk that is not faced generally by individuals in El Salvador.
State Protection
[28]
The
applicants submit that the Board erred in this part of its analysis by
requiring that they have sought protection before fleeing, instead of
considering whether it was objectively unreasonable to expect them to seek
protection. The applicants argue that the Board failed to consider the
applicant’s evidence that he was afraid to go to the police and to consider
whether that fear was objectively reasonable.
[29]
I
agree that the Board did not consider the applicant’s allegation of his fear of
going to the police. Indeed, the Board could not reasonably have relied on
that allegation since it had already found the applicant not credible in his
testimony. Thus, similar to the analysis of generalized risk, it is not
possible to uphold the decision based on the state protection finding because
it may have been different were it not for the errors in the credibility
findings.
[30]
The
applicant’s testimony that the MS had infiltrated the police and that the MS
threatened to kill him if he ever went to the police, was relevant to the
determination of whether it was reasonable for him not to seek state protection.
Thus, I cannot find that the outcome of this analysis would have been the same,
absent the errors in the credibility analysis. Therefore, the decision must be
set aside.
[31]
The
application for judicial review is granted.
[32]
There
is no question to be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a different member of
the Board’s Refugee Protection Division. No question for certification has
been proposed and the Court finds that none arises.
"Donald
J. Rennie"
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