Docket: IMM-2645-11
Citation: 2011 FC 1262
Vancouver, British Columbia, November
3, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Applicant
|
|
and
|
|
|
JOAQUIN ROBERTO MEZA DELGADO ELSA
MARINA BERNAL DE MEZA
ELSA ALEJANDRA ARTEAGA BERNAL
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
When
all that is central to a case at its core is overlooked, a matter cannot be
said to have been understood. The decision of the Supreme Court in Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190, recognizes,
acknowledges and understands, in specific terms, the need for reasonableness
to be manifested through the existence of justification, transparency and intelligibility.
[2]
In
this case, the evidence as analyzed by the first-instance decision-maker is
void of meaning. The evidence is not set out for what it is, or is not. The
appropriate legislative provision, or section of the legislation which
requires, at the very least, consideration is wholly missing; therefore, the
synthesis, or the sum of all parts, of the evidence as a whole, is suspended in
limbo, lost in unintelligible space (without answers as to what was said
and why). Without analytical retrieval, and, without the exercise of synthesis
or the coming together of the narrative in all of its various parts, the sum of
all parts never does come together; and, its reasoning bears no semblance of an
adequate analysis of the evidence.
[3]
Therefore,
the entire case must be heard anew by a different first-instance
decision-maker. This is to ensure that the evidence will be understood as a
whole; only then can reasonableness, as defined by the Dunsmuir decision,
see the light of day.
II. Introduction
[4]
This
is a judicial review of a Refugee Protection Division (RPD) of the Immigration
and Refugee Board (Board) decision which determined that the Respondents are
Convention refugees. The Applicant seeks to have the decision set aside in
recognition of the Board Member having failed to consider whether the
Respondents are excluded from refugee protection under Article 1F(b) of
the Refugee Convention.
III. Judicial Procedure
[5]
This
is an application for judicial review of the RPD decision, dated March 14,
2011, determining that the Respondents are Convention refugees under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
IV. Background
[6]
The
Minister intervened in the Respondents’ refugee protection claims on the basis
that the principal applicant, Mr. Joaquin Meza Delgado, is described in
Article 1F(b) of the Refugee Convention. In particular, allegations were
made that serious reasons exist to consider that Mr. Meza Delgado engaged
in the serious non-political crime of misappropriating $60,000 USD while
working as the Consul General at the El Salvadoran consulate in Vancouver, Canada (Exclusion
Issue). Under section 98 of the IRPA, the definition of a “Convention
refugee” excludes persons who are described in Article 1F(b).
[7]
The
Minister’s position is that the RPD decision be set aside because the Board
Member erred in law and failed to exercise her jurisdiction by ignoring the Exclusion
Issue. Moreover, a breach of natural justice is alleged as no reliable transcript
is available of key testimony on which the Board Member had based the decision
– that of the Respondents’ witness, Salvador Nelson Garcia Cordova.
V. Analysis
[8]
The
Board Member erred in law in finding that Mr. Meza Delgado’s wife and daughter,
Elsa Bernal and Elsa Meza Delgado, have a nexus to the definition of a
Convention refugee due to membership in a “particular social group”.
[9]
The
Court does accept the reasoning of the Applicant:
·
The
IRB Board Member erred in law and failed to exercise her jurisdiction by
failing to consider section 98 of the IRPA. As a result, she applied an
incomplete version of the “Convention refugee” definition and erroneously
ignored the extensive evidence and argument filed by the Minister of Public Safety
and Emergency Preparedness. The evidence pointed to a need to consider that Mr.
Meza Delgado be excluded from the “Convention refugee” definition for serious
reasons which exist in regard to Article 1F(b) of the Refugee
Convention due to the serious, non-political crime of defrauding the El
Salvadoran government; key reference is made to Tab G of the Applicant’s Record
for consideration of an alleged misappropriation of funds, in a letter of June
4, 2008, signed by Mr. Ron Yamauchi, Hearing Officer, Pacific Region
Enforcement Centre, Canada Border Agency.
·
Moreover,
there is a breach of procedural fairness because the transcript of the November
2010 hearing is significantly incomplete. The Board Member’s decision turned
largely on her detailed findings in regard to the nature of the
El Salvadoran legal system and the status of Mr. Meza Delgado’s continuing
legal challenges in El Salvador. These findings were based on the
testimony of Mr. Salvador Nelson Garcia Cordova, Mr. Meza Delgado’s lawyer and
close personal friend in El Salvador; however, the
transcript of Mr. Cordova’s testimony is missing key portions: almost all the
evidence in respect of the findings on which the Board Member stated she had relied
is, in fact, missing.
[10]
Notwithstanding
the errors, each of which is sufficient to warrant setting aside the Board
Member’s decision, the Certified Tribunal Record discloses that the Board
Member also erred in law by misapplying “particular social group” under the
Convention refugee definition.
[11]
To
the contrary, it is well-established that a family member of someone, who may
be at risk, is not, in and of itself, sufficient to establish a nexus to the
Convention refugee definition. Rather, the onus lies on a refugee claimant to establish
personal risk, wherein a family as a whole may, or will be, targeted as a group
(Pour-Shariati v Canada (Minister of Employment and Immigration) (1997),
215 NR 174 (FCA); Mancia v Canada (Minister of Citizenship and Immigration),
2011 FC 949).
[12]
This
Court recently summarized this principle in Mancia. In that case, the
applicant was a citizen of El Salvador who claimed that she
was at risk of persecution on a Convention ground. That ground arose due
to the allegation that her brother had been targeted by an El Salvadoran
criminal gang, the Maras. The applicant asserted that she therefore was
a member of a particular social group, namely, “a family member of the one who
has been targeted by the Maras.” The Court rejected this argument:
[10] In
addition to submitting that the Board failed to understand or assess her claim
as gender-related, the Applicant also argues that the Board failed to
appreciate that the claim also was made on the basis of her membership in a
particular social group – namely, her family. The Applicant points to the
transcript of the hearing where counsel for the Applicant suggests that the nexus
between the Applicant’s claim and a Convention ground was “As a family member
of the one who has been targeted by the Maras”. The transcript also demonstrates that
the Applicant repeatedly testified that she feared attacks from the gangs
because of her relationship to her brother.
[11] Merely
being a family member of someone who has been the victim of crime does not mean
that there is a nexus to a Convention ground. As explained in Rivaldo
Escorcia v Canada (Citizenship and Immigration), 2007 FC 644, at paragraph 39,
Saying,
however, that a claim is not extinguished does not relieve non-excluded family
members from putting forward evidence that supports their claim. The
jurisprudence of this Court has found that persecution against one family
member does not automatically entitle all other family members to be considered
refugees (see Pour-Shariati v. Canada (The Minister of Employment and
Immigration) (1997), 215
N.R. 174 (F.C.A.), 39 Imm. L.R. (2d) 103; Marinova v. Canada (Minister of Citizenship and
Immigration), [2001]
F.C.T. 178, 103 A.C.W.S. (3d) 1198). In Granada v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1766, 136 A.C.W.S. (3d) 123, [2004]
F.C.J. No. 2164 (F.C.) (QL), a similar case of a family claiming their refugee
status dependent upon a family member’s fear of persecution against the FARC,
the Court stated at para. 16:
The
family can only be considered to be a social group in cases where there is
evidence that the persecution is taking place against the family members as a social
group: Al-Busaidy v. Canada (Minister of Employment and Immigration)
(1992), 139 N.R. 208 (F.C.A.); Casetellanos v. Canada (Solicitor General),
[1995] 2 F.C. 190 (F.C.T.D.); Addullahi v. Canada (Minister of Citizenship
and Immigration) (1996), 122 F.T.R. 150; Lakatos v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 408, [2001] F.C.J. No. 657
(F.C.T.D.) (QL). However, membership in the social group formed by the family
is not without limits, it requires some proof that the family in question is
itself, as a group, the subject of reprisals and vengeance or, in other words,
that the applicants are targeted and marked simply because they are members of
the family even though they themselves have never been involved in politics and
never will be so involved. (Canada (Minister of Citizenship and
Immigration) v. Bakhshi, [1994] F.C.J. No. 977 (FCA) (QL)). [Emphasis in
original].
[13]
In
the present case, the reasons of the Member contain the very same error made by
Ms. Mancia. Having determined, based on Mr. Cordova’s testimony, that Mr.
Meza Delgado is at risk of persecution on the Convention ground of “political
opinion”, the Member concludes that, therefore, because they are his immediate
family members, Mr. Meza Delgado’s wife and daughter necessarily are “members
of a particular social group”:
[40] I find that the principal
claimant faces a reasonable possibility of persecution by reasons of his
political opinion, and that the associated claimants by reasons of their
membership in a particular social group, i.e., being immediate family members
of the principal claimant.
[14]
Insofar
as the Board Member comments in paragraph 39 of her Reasons, that “the
claimants will likely face politically motivated charges that could include
significant incarceration for all claimants”, it is unclear what the basis is
for her reference to “all claimants.” There does not appear to be any evidence
in the Certified Tribunal Record that Mr. Meza Delgado’s wife and daughter are
being investigated, or are of interest to the El Salvadoran authorities. Nor
does the Member identify any general documentary evidence of reprisals against
the family members of Government officials, who were investigated by the Court
of Accounts in connection with corruption or fraud. The Board Member does
suggest that she may be relying on the oral testimony of Mr. Cordova – Mr. Meza
Delgado’s close personal friend and lawyer; however, as explained by the Applicant,
no meaningful transcript exists of this evidence; therefore, what Mr. Cordova
actually said is unknown. In any event, the limited excerpts of Mr. Cordova’s
testimony that are available suggest that Mr. Cordova’s other clients are not
in the same circumstances as Mr. Meza Delgado; they are rather the subject of
extradition proceedings (decision at para 39).
[15]
The
Board Member’s reference to “all claimants” in paragraph 39 is confusing as the
Member draws from a statement in paragraph 36 whereupon she relies on Mr.
Cordova’s evidence to find “the claimant” to be at risk; she then concludes in
paragraph 39 (following unrelated citations in paragraphs 37 and 38) that “all
claimants” are at risk, without having conducted any analysis or explanation as
to how she derived from the one “claimant” at risk, that all the claimants
became at risk. In the circumstances, the Board Member’s reasons fall short
of the threshold of “justification, transparency and intelligibility” as
directed by the Supreme Court (decision at para 36-40; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339 at para 59).
VI. Conclusion
[16]
In
sum, the Board Member’s conclusion that Mr. Meza Delgado’s wife and daughter
meet the definition of “Convention refugee” under the IRPA is based on
material errors of fact and law, with reasons that are insufficient. Therefore,
the Board Member’s decision in that regard is set aside as is the decision in
regard to Mr. Meza Delgado.
[17]
Accordingly,
for all of the above reasons, the Board Member’s decision is entirely set aside
and remitted to a different decision-maker for determination anew.
JUDGMENT
IT IS THIS
COURT’S JUDGMENT that the Board Member’s decision be set aside and
remitted to a different decision-maker for determination anew. No question of
general importance for certification.
OBITER
The quandary appears to
turn on whether the allegations were improper, or proper, in regard to Mr. Meza
Delgado. Was someone or some entity attempting to “frame” him in a Kafkaesque
manner? It is difficult, if not impossible, in fact, to make out what happened
at the refugee hearing and why the Refugee Board decided what it did. From
materials submitted to the Federal Court, it is recognized that Mr. Meza Delgado
held key political positions in El Salvador, including that of head of the Christian
Democratic Party and had also been a former ambassador of El Salvador to the United Nations.
In recognizing the
allegations against Mr. Meza Delgado, a key question remains without answer:
whether the rent for the consulate premises in Vancouver, evidence which would
be derived in Canada (for the time in
question) was paid; and, what was the sum total dollar figure for the rental
property. That would, at least, ascertain the validity of the key allegation
against him in respect of most of the misappropriation of funds. In addition, the
IRB is missing a key portion of its transcript on the Exclusion Issue itself which
contributes to an even more Kafkaesque situation wherein the most significant
evidence on that issue is unavailable; thus, the allegations cannot be
ascertained with any meaning as to whether they are substantial or otherwise.
One way or another, the only entity that can resolve the issues left in a quandary
is the IRB, Refugee Determination Division, as it is the decision-maker of
first instance, the decision-maker as to the facts at issue; when the facts at
issue are sorted out, only then can inherent logic be applied to the evidence
by which to reach a conclusion (which logic and evidence are presently wholly
missing).
“Michel M.J. Shore”
Email this Content