Prahl v. Canada (Minister of Citizenship and Immigration), docket IMM-1960-97

Date: 19980220

Docket: IMM-1960-97

BETWEEN:

     HARRY EDWARD PRAHL CARDENAS

     MARIA VICTORIA PALACIOS DE PRAHL

     GRETHEL MARIE PRAHL PALACIOS

     HARRY EDWARD PRAHL PALACIOS and

     PAUL HERMAN PRAHL PALACIOS

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CAMPBELL J.

[1]      This is an application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD"), dated March 13, 1997, wherein Harry Edward Prahl Cardenas (the "Applicant") and his wife and children were found not to be Convention refugees. The Applicant bases his claim on a well-founded fear of persecution on the grounds of political opinion and membership in a particular social group. The claim of Mr. Cardenas" wife and children is on the ground of membership in the social group "family", and thus submit that Mr. Cardenas" persecution is their persecution.

A. The evidence

[2]      From 1984 to December 1990, the Applicant worked for various medical laboratories as a salesman promoting the sale of pharmaceutical products. Once every four weeks he would travel on five-day scheduled route visiting hospitals and pharmacies. He promoted the company's products with doctors in an effort to increase prescription of the company's products to patients. The company employed 25 salesmen, all with different routes.

[3]      The Applicant also owned a drugstore in Chimaltento, which was located 55 kilometres from Guatemala city. He had a manager operating the store and he would go there every weekend to supervise the store.

[4]      In October 1994, the Applicant's car was stopped by 15-20 men wearing uniforms similar to army uniforms. They searched his car and found the medicines that were in the trunk. He was told that he was required to collaborate with them by donating "war taxes" and took 40-50% of the medicine from the trunk. He was told that if he did not co-operate, the Applicant and his family would be injured.

[5]      During this incident, the men examined (but did not confiscate) his driver's licence, sedula [sic] and car registration. He was warned not to contact the authorities about the incident. The Applicant was fearful because he believed that the men were guerrillas but he did not know from which guerrilla group. Most guerrilla groups operate under the umbrella group called the Guatemala National Revolutionary Unity ("URNG").

[6]      He continued on his route and never informed the company about the confiscation of some of his medicines because he did not want problems with his employer. He was not aware of any other sales person from the company who had experienced a problem with guerrillas.

[7]      While he was returning from a business trip in November, 1994, a large truck blocked the road in front of the Applicant. He was dragged from the car and beaten with a rifle which broke his teeth. He was told that he would have to continue to co-operate with them and give them further "war taxes". All of his medicines were seized and he was warned not to contact the police or the army. He recognized four of the men from the incident in October. He did not inform the police, the army or the company of the incident.

[8]      The next day, the Applicant went to the dentist. In January 1995, the Applicant saw a dental surgeon. The report prepared indicated that the Applicant had been in a car accident on November 18, 1994 and had fractured his upper incisors due to a sudden stop.

[9]      For the next few months, the Applicant took different roads to avoid the guerrillas. He was phoned at home 4-6 times every month and reminded of his obligation to the guerrillas.

[10]      While he was in Guatemala city with his family on April 1, 1995, a rock was thrown through the windshield of the car. The assailants swore at the Applicant and hit the car with sticks. He recognized the assailants as the same people who had attacked and threatened him in previous months. He immediately left the area.

[11]      The Applicant filed an insurance report dated April 10, 1995 which stated that while he was driving to Colonia Bethania someone threw a rock which broke the windshield. He indicated that he tried to stop but some kids came out and pelted him with rocks and sticks so he left. The Applicant filed an erroneous report because he was afraid of the guerrillas.

[12]      On May 25, 1995, while parking his car at his house, he was accosted by two men and forced inside his house. He was reminded of his obligation concerning paying "war taxes" and providing medicines. He was warned to co-operate and told not to contact the authorities.

[13]      Feeling that it was futile to try to avoid the guerrillas, the Applicant reverted back to his old routes. In June, July and August 1995, the Applicant was stopped by armed men who took portions of his medicines. He was not stopped again until October. By this time, the guerillas greeted him by name.

[14]      In November, 1995, the Applicant was stopped in his car by army personnel. He was put in the backseat of the car and blindfolded. He was accused of helping the insurgents, was kicked and had a plastic bag placed over his head containing toxic substances. One of the men instructed the others to release him. That man told the Applicant that he should leave immediately or the other soldiers would kill him. He was driven in his car to his hotel and dropped off.

[15]      Shortly thereafter, the Applicant applied for and obtained Guatemalan passports for himself and his family. First he sent his 13 year old daughter to Canada, and then on December 10, 1995, he and the rest of his family followed. He resigned from the pharmaceutical company once he arrived in Canada.

[16]      While in Canada, he was informed by his brother that strangers were asking for him. Another time, strangers asked the Applicant's brother-in-law about a red car (the Applicant owned a red car). At the same time, another car came by and demanded to know where the Applicant was. The Applicant's brother-in-law was accused of hiding the Applicant and was shot at.

[17]      On January 24, 1996, the Applicant received a facsimile indicating that Douglas, the caretaker of their house in Guatemala, had received a phone call after the drive-by shooting. Douglas was told that the shooting was a warning and the next time they would shoot at the house. They indicated that they were looking for the Applicant and that they had a right to impose the "war tax".

[18]      In 1996, the Applicant learned from his brother-in-law that a pharmaceutical sales representative had been killed.

B. The CRDD"s findings and my analysis

[19]      Even though Mr. Darwent, on behalf of the Applicant and his family, raised many strong points of concern in the challenge to the CRDD"s decision, I choose to focus on only two in reaching the conclusion that the CRDD"s decision must be set aside.

     1. The social group finding

[20]      Regarding the Applicant"s social group, the CRDD made the following finding:

Counsel for the claimant submits that the claimant is a member of a particular social group specifically pharmaceutical salesmen in Guatemala. In accordance with the principles set out in Ward v. A.G. Canada ([1993] 2 S.C.R. 689), the panel does not find that pharmaceutical salesmen in Guatemala constitute a particular social group within the meaning of the definition of Convention refugee.

[21]      Mr. Darwent"s argument was that, regardless of the submission made, on the authority of Joel Coreas Navarro v. The Minister of Citizenship and Immigration (File A-1699-92, F.C.T.D.), the CRDD was under a duty to make a proper determination on the evidence presented.

[22]      In Navarro, Wetston J. said this:

It is the opinion of the Court that given the evidence submitted by the applicant which pointed to a ground of membership in a particular social group as founding a possible fear of persecution, the Board should have considered this ground as part of the claim to refugee status notwithstanding the fact that the claim was not expressly relied upon in the PIF. This is particularly so since the Board appears to have accepted the evidence of the applicant regarding his kidnapping and forced labour. (Ward v. M. E. I. [1993] 2 S.C.R. 689 at page 745; Singh v. Secretary of State of Canada, June 14, 1994, Imm-3591-93 (F.C.T.D.))

The Board failed altogether to assess the claim based upon membership in a social group. (Hujaleh v. M.E.I., April 14, 1993, A-250-92 (F.C.A.). The Board has a duty to assess the evidence and decide if it amounted to evidence of a well founded fear of persecution. While it would have been preferable and indeed desirable for counsel to have argued this ground, there was nevertheless a duty on the Board to consider whether membership in a social group, in this case, gives rise to a well founded fear of persecution. [Emphasis Added]

[23]      I agree with Mr. Darwent"s submission that the CRDD did not properly discharge its duty, and, accordingly, find that an error in law has been made under s.18.1 (4) (c) of the Federal Court Act .

     2. The credibility finding

[24]      The CRDD accepted as credible that the Applicant was a pharmaceutical salesman; he went to see a dental surgeon regarding his broken teeth; he filed an insurance report regarding his broken windshield; and that he resigned from the pharmaceutical company after arriving in Canada.

[25]      However, the CRDD did not believe that the Applicant had numerous encounters with the guerrillas; that the army confronted and attempted to kill him; and that the guerillas continued to search for him at his family's home in Guatemala. In a very careful analysis in written argument, Mr. Darwent stated his concerns about the CRDD"s findings on credibility as follows:

At page 6 of the Reasons for Decision (RECORD 75) the Presiding Board Member states:

"The panel does not believe that he had the encounters with the guerrillas; that the army confronted and nearly killed him or that the guerrillas continued to look for him at his family's home. There are several areas of evidence that we find too implausible to be believed."

It is trite to say that where a person gives evidence under oath it is presumed to be the truth unless there are serious reasons for doubting its truthfulness. (Villarroel v. M.E.I. (1979) 61 N.R. 50, Maldonado v. M.E.I. (1989) 2 F.C. 302, Armson v. M.E.I. (1989) FCA Document No: A-313-88); Attakora v. M.E.I. (1989) FCA Digest D 1486-04;

The Board would act arbitrarily, in my view, if it chose, without valid reasons, to doubt the credibility of a witness. If an applicant swears to the truth of certain allegations, that, in my view, creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.

Villarroel (supra) per Pratte J.

When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. Maldonado (supra).

These basic principles were expressed recently by Mr. Justice Campbell in Van Anh Nguyen v. M.C.I. (1997) IMM 1533-96 as follows:

The principles that decision makers must listen to the testimony in its entirety with an objective and open mind, and testimony given under oath is presumed to be true unless there are valid reasons to doubt its truthfulness, are fundamental to proper findings of credibility. These principles are important because all witnesses are entitled to start from a position where they are respected and their evidence is believed. [Emphasis added]

From the comments cited above made by the Presiding Board Member it is apparent that these basics have been completely ignored and that the panel have substituted their own intuitions and speculation instead. An examination of some of the items which the Board Member describes as 'implausible' clearly bears this out. For example:

1.      "The panel finds it highly implausible that the claimant would continue on his route after being robbed at gunpoint after the first incident. We would expect that he would have returned to his employer, if not to report the loss, to replenish his stock of drug samples or to compose himself after the ordeal."

It is submitted that here the Board Member is speculating as to what she herself might have done if she was a drug sales person who had been robbed by armed guerrillas, but there is nothing at all in the facts as stated by the claimant which would make his decision to continue on his route either implausible or untrue. Neither does it take into consideration his geographical location at the time of the incident in relation to his employer's place of business. His evidence was also completely uncontradicted.

2.      "The panel does not find it plausible that the claimant did not report his losses to his employers but filed false accident and medical reports as to what happened to him out of fear of the guerillas. He believed that the guerrillas might have informants at the police station. The panel finds that his beliefs are based on conjecture and his explanations are unsatisfactory."

Here again, the Board Member is accusing the claimant of speculation but simply replaces his speculation with her own. It might be unreasonable to believe that guerrillas have spies in police stations in Canada but in war-torn Guatemala such occurrences are highly likely. His belief that spies existed could not seriously be based on anything other than his own conjecture - it is unlikely that he would have ever personally met such a spy or recognised him as such if he had met him. However, the Board Member clearly overlooks the fact that the claimant had lived all his life in Guatemala and would therefore reasonably be expected to be familiar with such events as spies in police stations and the other horrors of a guerrilla insurgency. It is submitted that there is absolutely nothing implausible about being reluctant to report his losses to his employer through fear of the guerrillas. This is again, simply the man reacting in a manner different, perhaps, to the way in which the Presiding Board Member might have reacted had she been in his shoes in Guatemala instead of safe at home in Calgary.

3.      "The claimant testified that he was the only salesman in his company who had problems with the guerrillas. Yet he said that the collection of 'war taxes' was based upon the guerrillas needs."

Again this statement, of itself, reveals nothing implausible or which the panel could really regard as being untrue with any solid foundation for such a finding. There may well have been other salesmen who, like the claimant, felt it safer not to broadcast their problems and on that basis he would not have known.

It is respectfully submitted that there is nothing at all in the perceived 'implausibilities' cited by the presiding Board Member which satisfies the test for the proper rejection of the claimant's testimony.

Credibility concerns after the claimants left Guatemala

The Presiding Board Member states (RECORD 76):

"The panel places little weight to the corroborating correspondence provided by the claimant. He asked them to write letters to support his evidence. We find the letters are self-serving"

It is respectfully submitted that the only other source of corroborative testimony would come from his family who remained in Guatemala. He naturally requested that they should write and indicate what they knew about his problems and the situation in Guatemala. They did that and although their correspondence post-dates the claimants' arrival in Canada there is again, nothing to suggest that what they were writing was not true. The style of writing may leave much to be desired in the eyes of the Presiding Board Member, but it should be borne in mind that firstly, it was translated from a foreign language, and secondly that Spanish formal writing style is somewhat different to Canadian.

It is significant that the Presiding Board Member herself admits (RECORD 77) that:

"The panel finds that the number of implausibilities, acknowledging that no one of them by itself was of great significance, was such that it simply did not find the evidence as a whole to be credible. In conclusion, the claimant's testimony does not have a 'ring of truth."

It is respectfully submitted that even when viewed in their totality the so-called implausibilities do not amount to enough to form a basis on which to reject the whole of this claimant's testimony. It is noteworthy that what the Presiding Board Member thought she found were 'implausibilities' as opposed to inconsistencies. Neither could she find anywhere anything which would in any way contradict the claimant's testimony. The events which he described are essentially the kind of incidents with which the documentary evidence is replete. Given that the events occurred in contemporary Guatemala as opposed to Canada, the 'implausibilities' are completely stripped of their weight.

Although the country under consideration in the case at bar is Guatemala the thinking of the panel here is on par with that in the case of Iqbal Singh Bains v. M.E.I. (1993) 92-A-6905 (Fed T.D., where Cullen, J. commented as follows:

Moreover, the events as described by the Applicant may have seemed implausible and therefore not credible to the Refugee Division, but as counsel for the applicant points out Canadian paradigms do not apply in India". Torture, unhappily, is real, as is exploitation and revenge, often resulting in killings.

(Emphasis added)

[26]      In response to these submissions, Mr. Blain for the Respondent cited the following passage from Aguebor v. Minister of Employment and Immigration ([1993] F.C.J. No.732 (F.C.A.)) as authority for the argument that I should not interfere with the CRDD"s findings:

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 review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Board could not reasonably have been drawn.

[27]      I have no quarrel with Mr. Blain"s argument on the law, but because I completely agree with Mr. Darwent"s views as above cited, I find that the CRDD"s credibility findings made are unreasonable. Accordingly, I find that under s.18.1 (4) (d) of the Federal Court Act that the CRDD based its decision on erroneous findings of fact made in a capricious manner.

C. Conclusion

[28]      For the reasons provided, with respect to the Applicant, his wife, and children, I set aside the decision herein, and refer the matter to another panel of the CRDD for rehearing.

     J.F.C.C.

OTTAWA, ONTARIO