Date: 20081010
Docket: IMM-636-08
Citation: 2008 FC 1148
Montréal, Quebec, October 10, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
Jose
Miguel Hernandez Medina
Belia Rosa Martinez
Guanipa
Martin Javier
Sanchez Martinez
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated December 12, 2007, determining that the applicants are neither Convention
refugees nor persons in need of protection, as defined by sections 96 and
97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
II. Facts
[2]
Jose
Miguel Hernandez Medina (principal applicant) and the other applicants, his
wife Belia Rosa Martinez Guanipa, and his son Martin Javier Sanchez
Martinez, are all citizens of Venezuela.
[3]
The
principal applicant began working for Petroleos de Venezuela SA (PDVSA),
which is owned by the Venezuelan government, on September 27, 1992;
he was employed there until he was dismissed on January 31, 2003, along
with some 19,000 other workers, following a general strike triggered by the
unions and the party opposing the government of President Chavez.
[4]
On
the day of the strike, the principal applicant was arrested by the National
Guard. After his release a short time later, he learned of his dismissal in the
newspapers, which published the list of all the other workers who had been
dismissed for the same reason.
[5]
The
principal applicant claims that he was subsequently unable to find work in his field,
even at a private company, because of a letter to the petroleum companies
threatening them with reprisals if they hired former strikers who had been
dismissed. From 2004 to 2005, he operated a convenience store that he finally
had to close.
[6]
Believing
that he was being harassed because of his anti-Chavez political convictions, he
obtained a passport from the authorities in his county and used it to obtain a
visitor’s visa from the Canadian authorities. He arrived in Canada on
July 21, 2006, and claimed refugee status on August 4. His wife
and his son came to live with him a month later and joined in his claim.
III. Impugned decision
[7]
The
Board refused to grant refugee status to the applicants because it found that
an internal flight alternative (IFA) existed in Venezuela, outside the
states of Carabobo and Falcon.
[8]
After
considering the documentary evidence, the Board noted that the principal applicant
did not have the same profile as the leaders who had encouraged the 2003 strike
and who were targeted by the Chavez government, since he was only one of the
many dismissed strikers whose only role was participating in the strike as a
mere employee. The Board found that being a former PDVSA employee did not put the
principal applicant at risk elsewhere in Venezuela on the basis
of his profile, position or activities during the strike.
[9]
At
the hearing, the principal applicant added to his profile and stated for the
first time that he had been a member of the Social-Christian Party (COPEI) from
1982 to 1983. The Board decided that the applicant’s former allegiance to this
party did not put him at risk because his work at that time was specific,
limited and on a volunteer basis, and he never held an official position with
the party.
[10]
Finally,
considering the applicants’ diplomas, work experience, age and state of health as
well as the documentary evidence, the Board determined that it was not
unreasonable to believe that they could seek refuge in their country, outside
the states of Carabobo and Falcon, without being disturbed.
IV. Issue
[11]
Did the Board err by failing to consider material evidence in its
analysis, when it found that, with their profile, the applicant and his family
could take refuge in their country, outside the states of Carabobo and Falcon, without putting themselves
at risk?
[12]
Essentially,
the applicants are challenging the Board’s findings of fact based on the
evidence and contend that it did not consider all the evidence.
V. Analysis
a.
Standard of review
[13]
As a specialized administrative tribunal, the Board has expertise
in matters that come under its jurisdiction. Courts must show deference to
decisions of these tribunals that are based on an assessment of the facts where,
as in this case, the tribunals are acting within their jurisdiction. The court
must inquire whether the impugned decision is reasonable, having regard to its
justification, and whether the decision falls within a range of possible,
acceptable outcomes that are defensible in respect of the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC
9). The reasonableness standard does not require a greater intervention than
the answer to this question.
[14]
Within
this standard of review, can it be concluded that the Board erred by deciding
that, with their profile, the applicant and his family could take refuge in
their country, outside the states of Carabobo and Falcon, without putting themselves at risk?
b. Internal
flight alternative
[15]
Even
if the Board did not doubt the applicants’ story, the onus of proof rested
on them to show, on a balance of probabilities, that there was a serious
possibility of persecution throughout their country, with no possibility of
an IFA, including the states mentioned by the Board, and that it was
objectively unreasonable for them, based on their situation and circumstances,
to seek safety in another part of their country (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (FCA)).
[16]
The
Federal Court of Appeal set out a two-part test for an IFA: the tribunal must
be satisfied, on a balance of probabilities, that
there is no serious possibility that the applicants would face persecution in
the part of the country that is alleged to afford an IFA, and the
tribunal must also be able to find that the situation in the part of the
country that it considers to be an IFA is such that it would not be
unreasonable for the applicants to seek safety there, considering all the circumstances
(Thirunavukkarasu, above, pages 597 and 598).
[17]
It
appears from the reasons of the impugned decision that, before determining that
there was an IFA, the Board carefully analyzed all the evidence based on the
two-part test set out in the above‑mentioned case.
[18]
After
reviewing the documentary evidence, the Board was satisfied that the
individuals targeted were “opposition leaders”, “prominent human rights lawyers”,
“journalists and officers of media companies”, managers of organizations, in
short, people whose profile was very different from that of the principal
applicant, who was simply a basic union member when he was dismissed in 2003.
[19]
The
principal applicant’s situation is no different from that of the many union
members who were dismissed like him and who were able to relocate, find work elsewhere
in Venezuela, and even,
for a number of them, receive compensation. Moreover, none of the reports that
were put in evidence indicate that the Chavez regime targeted mere employees of
the PDVSA after their dismissal solely on the basis of their participation in
the 2003 strike, as was the case for the principal applicant.
[20]
In
his testimony before the Board, the principal applicant added, however, that notwithstanding
his efforts to settle elsewhere in his country, he would always be intimidated
and harassed because of his political convictions. But again, his situation is
no different from the large number of Venezuelans who share the same
convictions and openly oppose the Chavez regime. The documentary evidence
analyzed by the Court indicates that only the leaders, activists or heads of
political opposition movements are at risk of being targeted by the Chavez
regime, and the principal applicant never played such a role.
[21]
In
the personal information declaration that the applicant submitted in support of
his refugee claim, he referred extensively to his dismissal in 2003, his
efforts to relocate elsewhere and his difficulties in finding work that could
support him and his family. Nowhere in this declaration does he describe
himself as a political activist. It was not until he testified before the Board
that he described himself for the first time as a political activist opposed to
the Chavez regime. However, even there, he testified that the only time he demonstrated
publicly against the Chavez regime was as a mere striker taking part in a
gathering during the famous strike that led to his dismissal. Such a role does
not make him an activist or a leader.
[22]
If,
as the documentary evidence analyzed by the Board indicates, a large number of his
former co-workers were able to relocate and earn a living elsewhere in Venezuela despite
their participation in the 2003 strike, it was open to the Board to believe
that the principal applicant and his family could do likewise. To suddenly
describe himself, as the principal applicant did at his refugee hearing, as a
political activist opposed to the Chavez regime, when he did not mention this
previously in his written declaration, is perhaps a self-interested assertion.
But activism is measured by the facts, and prior to this statement by the
applicant at the hearing, his own description of the facts did not make him a political
activist any more than the large number of opponents of the Chavez regime.
[23]
After
analyzing the decision under review as well as the evidence in the record,
including the transcript of the principal applicant’s testimony, the Court does
not see how it was unreasonable for the Board to believe that the applicants
could live elsewhere and earn a living in their country without putting
themselves at risk, instead of trying to seek refuge in Canada.
[24]
In
short, the applicants have not discharged their onus of demonstrating that the
Board made an error justifying the intervention of this Court. It is not for
the Court, at this stage, to reassess the evidence or substitute its opinion
for the Board’s. The Board had the advantage of its expertise and especially
the unique advantage of having heard the claim.
[25]
The
issue is not so much whether the Court would have rendered the same decision,
but whether the decision falls within a range of possible, acceptable outcomes
that are defensible in respect of the facts and the law. The facts and the law
support the decision in this case.
[26]
The
Court must therefore find that the decision under review is not unreasonable, which
is fatal to the application for review. No serious question of general intent
was proposed, and no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
Dismisses the
application for judicial review.
“Maurice
E. Lagacé”
Certified
true translation
Mary
Jo Egan, LLB
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