Date: 20050225
Docket: IMM-8752-03
Citation: 2005 FC 302
Ottawa, Ontario, this 25th day of February, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NIGEL (DALE) GONZALES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated October 9, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests:
1. That the decision of the Immigration and Refugee Board dated the 9th day of October 2003, be reviewed and set aside;
2. That the applicant's claim to refugee status be reheard.
Background
[3] The applicant, Nigel (Dale) Gonzales, is a citizen of Trinidad and Tobago who claims a well-founded fear of persecution on the basis of his political opinion and membership in a particular social group, namely, those people who are targeted by police and drug dealers in Trinidad.
[4] The applicant was born in Port of Spain, Trinidad. The applicant stated that on September 23, 2001 he and his friend, Mark Frederick, went fishing from approximately 10 p.m. until 4 a.m. On the way back to their car, they heard loud voices through the bushes. They decided to find out what was there. They saw a group of six men involved in a drug deal, two of which were in Trinidadian police wear, and the other four appeared to be "decent Spanish speaking men".
[5] The applicant stated that he and his friend were discovered by another officer who began interrogating them. The two officers involved in the drug deal began threatening the applicant and his friend as they took them to the car. The applicant stated that he and his friend were threatened and told not to tell anyone what they had seen. The two officers also made threats regarding the applicant's and his friend's families.
[6] The applicant and his friend decided not to tell anyone about what had happened due to concerns about corruption in the police and government. The applicant did, however, inform another friend of his who is a police officer. The applicant was advised by this friend that he should not tell anyone else.
[7] The applicant stated he began receiving threatening phone calls at home. On several occasions, the two officers who had threatened him visited his home looking for him. His friend, Mark Frederick, was apparently not as worried as the applicant and told someone else what had happened.
[8] As the threats increased, the applicant decided he had to leave the country. The last time he was approached by the police was on December 28, 2001. The applicant stated that he was picked up by the police and while sitting in the back seat, one officer pulled out his gun and pointed it at the applicant while the other officer asked him questions. The officers threatened to kill the applicant and his friend if they told anyone about what they had seen.
[9] The applicant stated he left Trinidad for New York City on December 31, 2001. He left his car with his friend. When he arrived in New York, the applicant called his friend to advise him of where the car insurance papers were. The applicant stated that his friend's mother told him that this friend had been shot at and killed while leaving home in the applicant's car.
[10] The applicant stated that his family in Trinidad are being threatened and harassed by police who want to know his whereabouts. The applicant feels he cannot return to Trinidad due to a lack of police protection there. He stated that if he returns, the police would either kill him or "make him disappear".
[11] On July 29, 2002, the applicant stated his intention to claim refugee status.
[12] After numerous postponements due to either illness or scheduling difficulties, the applicant's refugee claim took place before the Board on September 19, 2003.
[13] On October 9, 2003, the Board determined he was not a Convention refugee or a person in need of protection.
Board Decision
[14] The Board found the applicant's story not to be credible. The Board noted the following areas of concern about the applicant's story:
1. The Board was never told why police officers engaged in this corrupt activity in the middle of the night would wear their uniforms to make this purchase
2. The Board was being asked to assume that Mr. Frederick had been murdered by the police officers who were worried about his knowledge, and that the claimant is in similar danger.
3. Despite having stated that the deceased's mother "knows everything", the applicant could not provide a satisfactory answer as to why she would not have provided the police with whatever leads she had as to her son's alleged killers. If she was concerned about police corruption, why would she not then have contacted the media who would have corroborated her story by interviewing the applicant (who was in Canada)?
4. The Board found that the applicant's statement that he did not attempt "to orchestrate a solving of the crime" and work towards clearing his best friend's name due to concerns that his actions might place his mother in danger, only came to him as a result of a suggestion by his counsel in re-examination.
5. There had been no attempt by either the applicant, the deceased's mother or anyone else to assist the police in unravelling "this problem of apparent police corruption". The panel asked the applicant why his mother had not told the police. The applicant backtracked, saying, "I don't know whether or not she told them". The Board was not prepared to accept this evidence. The Board had the impression that the applicant had not thought out what answers he would give regarding "the deceased's mother's relationship with the police and what would have been a vicious libel that obviously would have occurred by the police and the newspapers if the claimant had already been telling the panel the truth".
6. The applicant failed to produce evidence of whether the deceased had been deported from the United States as the newspapers had claimed. This was information that could be easily ascertained and brought to the attention of the Trinidadian police and the Board.
7. The applicant provided no corroborating information or evidence from Corporal Lennox confirming that he had advised the applicant to refrain from reporting the crime because the police officers involved were very powerful and that nothing should be done about what the claimant had seen.
[15] The Board held that even if the panel were to believe the applicant's story in its entirety, the applicant had not done enough to seek state protection in a situation of this nature.
[16] The Board found, on a balance of probabilities, that the applicant was a good friend of Mark Frederick and that Mark Frederick was murdered. The Board was not prepared to accept, on a balance of probabilities, that the incident of September 23, 2001, occurred at all or that the applicant has any knowledge of police corruption in Trinidad that would involve police seeking to kill him. The Board therefore held that the applicant was not a Convention refugee.
[17] The Board also held that after considering counsel's submissions, that there was no risk to the applicant's life or a risk of cruel and unusual treatment or punishment or torture should he return to Trinidad and Tobago. The Board therefore also found the applicant to not be a person in need of protection.
Issue
[18] The issue as framed by the applicant is:
Did the Refugee Protection Division err in determining the applicant's claim lacked credibility and its objective foundations lacked merit?
Applicant's Submissions
[19] The applicant submitted that the Board erred in holding that the police statements in the newspaper article would have constituted a vicious libel if the applicant had been telling the truth. The Board erred by applying Canadian media and legal standards to the Trinidadian media and legal system.
[20] The applicant submitted that the Board erred by drawing a negative credibility inference from the fact that it had not received any letters or any other information to corroborate the applicant's evidence about Corporal Lennox.
[21] The applicant submitted that the Board erred by taking minor or irrelevant apparent inconsistencies into consideration in assessing the applicant's credibility. Specifically, the Board's statement that "The panel was never told why police officers engaged in this corrupt activity in the middle of the night would wear their uniform to make this purchase". The Board appeared to draw a negative credibility inference from the perceived inconsistency between the police activity and their attire.
[22] The applicant submitted that the Board seemed to believe that Mr. Frederick was murdered as a result of being a possible drug dealer as alleged in the newspaper article. This was contrary to the applicant's statement that he was slain by the police for witnessing a drug deal. The applicant claimed that the Board determined this without reference to trustworthy evidence as required when the Board is making an adverse finding of credibility.
[23] The applicant submitted that in view of the applicant's Personal Information Form ("PIF") narrative, there is reason to believe the police murdered Mr. Frederick. Accordingly, the newspaper articles are neither objective nor unbiased, hence, not trustworthy and the Board erred by relying on them. The Board also erred by not giving the applicant an opportunity to explain the inconsistency. Additionally, little probative value should be assigned to a police report given the police's documented corruption.
[24] The applicant submitted that the Board erred in law by selectively referring to evidence that supported its conclusion with regards to the availability of state protection without also referring to the evidence to the contrary. The contrary evidence before the Board was the documents attesting to police corruption.
[25] The applicant submitted the Board erred in drawing a negative credibility inference from the applicant's failure to attempt "to orchestrate a solving of the crime". The applicant is in no position to do so as he is in Canada and he has a stated fear of the police and authorities.
[26] The applicant submitted that the Board erred by failing to provide adequate reasons and in failing to provide an evidentiary basis for one of its conclusions. Specifically, that the applicant's statement that he was concerned about placing his mother in danger only entered his head for the first time during re-examination by his counsel.
Respondent's Submissions
[27] The respondent submitted the applicant failed to file a personal affidavit. The applicant instead filed the affidavit of Ted Fine, a research analyst. The respondent submitted that when an applicant fails to file a personal affidavit in a judicial review proceeding, any error asserted by the applicant must appear on the face of the record.
[28] The respondent submitted that the applicable standard of review is patent unreasonableness.
[29] The respondent submitted that the Board's decision is based on findings of fact, specifically the applicant's credibility. In this case, the alleged errors of fact are not truly erroneous, were not made capriciously or without regard to the evidence, and the decision was not based on any erroneous findings. As the applicant has not demonstrated that the Board's findings are patently unreasonable, the Court should not interfere.
[30] The respondent submitted that the state is presumed capable of protecting its citizens. The onus is on a refugee claimant to provide "clear and convincing confirmation" of the state's inability or unwillingness to protect him or her. State protection applies to both state and non-state authorities.
[31] The respondent submitted that evidence before the Board acknowledged that "police corruption continues to be a problem" but also indicated the existence of an independent body (the Police Complaints Authority) to receive complaints about police conduct.
[32] The respondent submitted that in this case, the Board considered the fact that there has been no attempt by either the applicant, the deceased's mother or anyone else to assist the police investigation into the murder. Based on the applicant's testimony and evidence, it was open to the Board to find, as they did, that the applicant had not done enough to seek state protection.
Relevant Statutory Provisions
[33] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
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|
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
. . .
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97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
. . .
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Analysis and Decision
[34] Where credibility findings are at issue, the appropriate standard of review is patent unreasonableness (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). The same applies to findings of fact (see De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.) at paragraph 5).
[35] The respondent conceded the issue with respect to the police wearing uniforms while being involved in a crime. Even so, I do not believe that this impacts the Board's decision so as to require it to be reversed. There were other concerns about the applicant's testimony raised by the Board.
[36] The Board's concerns about the applicant's story are listed in paragraph 14 of this decision.
[37] The applicant submitted that the Board erred in relying on newspaper articles which referred to Mark Frederick as possibly having been murdered due to being a drug dealer. The newspaper evidence was submitted to the Board by the applicant. The applicant now states that the Board erred by preferring the applicant's own documentary evidence over what was contained in his PIF. I am of the view that the Board did not err in its use or weighing of the newspaper evidence submitted by the applicant.
[38] I have reviewed the Board's findings regarding the victim's mother failing to give information to the police and the applicant's lack of effort to clear his friend's name, and the Board's reference to a "vicious libel" by the police if the applicant's version of events were correct and I cannot conclude that any of the findings were patently unreasonable.
[39] The Board also found that even if the applicant's account of events was true, then he failed to seek out state protection. On the facts of this case, I am of the view that the Board's decision with respect to the availability of state protection was a reasonable finding.
[40] The application for judicial review is therefore dismissed.
[41] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[42] THIS COURT ORDERS that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
February 25, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8752-03
STYLE OF CAUSE: NIGEL (DALE) GONZALES
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 23, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: February 25, 2005
APPEARANCES:
Christina Gural
FOR APPLICANT
Kareena Wilding
FOR RESPONDENT
SOLICITORS OF RECORD:
Robert Gertler & Associates
Etobicoke, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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