Lopez v. Canada (Minister of Citizenship and Immigration), 2004 FC 281

Date: 20040226

Docket: IMM-2330-03

Citation: 2004 FC 281

Ottawa, Ontario, this 26^th day of February, 2004

Present:           The Honourable Justice James Russell                                  

BETWEEN:

        ALEJANDRA MYRIA LOPEZ AND MARIA ALEJANDRA RODRIGUEZ-ROGE

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                  This is an application for judicial review of the decision of Mr. Gordon McKenzie of the Refugee Protection Division ("Panel"), dated March 20, 2003 ("Decision") wherein the Panel found that Alejandra Myria Lopez and Maria Alejandra Rodriguez-Roge (collectively the "Applicants") were not Convention refugees or persons in the need of protection. Alejandra Myria Lopez ("Principal Applicant") is a 41-year-old citizen of Argentina and Maria Alejandra Rodriguez-Roge ("Minor Applicant") is her 14-year-old daughter.               

BACKGROUND

[2]                  The Principal Applicant claims a well-founded fear of persecution at the hands of the Argentinian federal police, and the Buenos Aires police force (particularly officer Juan Carlos Bogolieu of the Buenos Aires police force), by reason of her political opinion (as a member of the Action Party for the Republic political party and also because of her activities as a lawyer. The Minor Applicant bases her claim on that of her mother, stating that she has a well-founded fear of persecution at the hands of the same parties but by reason of her membership in a particular social group, namely her family. The Applicants also claim to be persons in need of protection because they say that they would be personally subjected to a risk to their lives or to cruel and unusual treatment or punishment, or to a danger of torture in Argentina.

[3]                 The Principal Applicant alleges that her problems in Argentina began after she was retained as legal counsel to investigate the killing of a 19-year-old girl, Edith (or Edit) Acevedo. The Principal Applicant says that her investigation into the killing of the girl turned up irregularities in police operations in Buenos Aires and pointed to police Sgt. Juan Carlos Bogolieu and two other police officers as being responsible for the killing of Ms. Acevedo. She claims that her investigation revealed that Ms. Acevedo had been killed by mistake and that the real person the police intended to kill was a young girl who was linked to a prostitution network operated by high-ranking police officers, including Sgt. Bogolieu.

[4]                 As a result of her investigation into the killing of Ms. Acevedo, the Principal Applicant alleges that the police became interested in her. First, on December 19, 2001, she says she was stopped by police, shouted at, had her car checked and vandalized, had some files confiscated, and was pushed. On December 20, 2001, she says she attended a huge protest and was taken out of the crowd by police who proceeded to blindfold her and to drive her to a location outside of the city. While being detained for three days in a small cell she claims that she was questioned about her political activities, threatened and physically mistreated.

[5]                 The Principal Applicant was released on December 23, 2001, and was advised to cease working on the Acevedo case. Next, on December 27, 2001, she says that three plainclothes policemen forced their way into her office, pushed and hit her, searched for information, and took many of her papers. She was again told to cease working on the Acevedo case or else she and her daughter would be killed. She claims that she was taken to the police station for one night and questioned about the Acevedo case and threatened. After this incident, the Principal Applicant says she withdrew from the case.

[6]                 On February 14, 2002, the Principal Applicant claims that she was followed by two men who said they were police officers. These men threatened her and told her to forget about the Acevedo case if she wanted to live. Afterwards, the same men stole her car. On April 15, 2002, she alleges that two policeman entered her apartment and left a newspaper article about the kidnapping of a young girl. A handwritten note on the article implied that the Minor Applicant would be next. It was after this incident that the Applicants decided to come to Canada.

DECISION UNDER REVIEW

[7]                 The Panel accepted the Applicant's identity as a national of Argentina, that she was employed in the private practice of law in Buenos Aires from September 1994 to May 2002, and that she was a member of the Action Party for the Republic political party in Argentina. However, the Panel determined that the Applicants did not have a well-founded fear of persecution for a Convention ground in Argentina. The Panel found that the Principal Applicant was not a credible witness because of numerous inconsistencies and discrepancies between her testimony and the documentary evidence. Further, there was a lack of sufficient credible evidence to establish her claim. In this regard, the Respondent summarizes the Panel's findings as follows:

The shooting death of Edit Acevedo was widely reported in a number of Argentinian and international publications. These publications indicated that the victim was essentially in the wrong place at the wrong time. These publications stated that she was shot by a policeman who was investigated, put under preventative detention, penalized half of his wages, was to be tried in court, and could face up to 25 years in prison.

The documentary evidence indicated that the lawyer representing the Acevedo family was Robert Damboriana.

Although in her Personal Information Form ("PIF") narrative, the Applicant listed police Sgt. Juan Carlos Bogolieu and officers Juan Caceres and Cesar Sanguinetti as the police officers who were involved in the incident, the documentary evidence identified different police officers. Moreover, the Panel's Research Directorate was unable to find any reference to the names of the police officers referred to by the Principal Applicant.

The Principal Applicant was questioned about the documentary evidence, however the Panel preferred the documentary evidence over that of the Principal Applicant's because it came from independent sources with no interest in the outcome of the claim.

If the police officers named by the Applicant in her PIF narrative had been involved in corrupt practices, which led to the victim's death in this case, it was implausible that independent and reliable sources (which are allowed to publish freely and vigorously), would not have reported on them. It was also implausible that there were no media reports of the Principle Applicant's alleged investigation into the police killing, especially if she had conducted the widespread investigation she alleged.

The Applicant was questioned about her vacation to Canada in January/February 2002 and why she had not made a refugee claim then. Her explanation was found to be unreasonable and it was determined that their failure to make an earlier refugee protection claim in Canada and their subsequent re-availment to Argentina seriously undermined the credibility of the Principal Applicant's allegation of past treatment at the hands of police. It was found to be inconsistent with a subjective fear of persecution at the hands of police.

No weight was attached to the two documents which were submitted into evidence by the Principal Applicant at the hearing as corroborative evidence that her car was confiscated by two corrupt police officers on February 14, 2002 because of the adverse credibility findings and because there was no reference to the identities of the persons who allegedly hijacked and stole her car (even though she says she knew who these men were).

The Principal Applicant's actions in continuing her law practice until May 2002 and her subsequent delay in leaving Argentina were found to be inconsistent with a subjective fear of persecution at the hands of police.

Given the adverse credibility findings, the Panel did not believe that the Principal Applicant conducted an investigation into the police shooting of Edit Acevedo in November and December 2001. It was determined that that was an attempt by the Principal Applicant to embellish her refugee protection claim.

It was not credible that the federal police threatened to kill the Principal Applicant and her daughter on December 19, 2001 and that they arrested, detained and physically mistreated her for 3 days on December 20, 2001. Additionally, due to the Applicant's failure to make a refugee protection claim while in Canada in January/February 2002 and her subsequent re-availment to Argentina, the Principal Applicant's allegations of receiving police threats in February and April 2002 were not credible.

The Principal Applicant's credibility was so seriously undermined that a general finding of lack of credibility with respect to central elements of her claim was made.

ISSUES

[8]                 The issue raised by the Applicants is:

Did the Panel base its Decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the evidence, specifically as regards its finding that the principle Applicant was not credible?

ANALYSIS

What is the applicable standard of review to apply to the Decision of the Panel?

[9]                  In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:

4. 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. ...

[10]            The Court should not seek to reweigh evidence before the Panel simply because it would have reached a different conclusion. As long as there is evidence to support the Panel's finding on credibility and no overriding error has occurred, the Decision should not be disturbed.   

Did the Panel base its Decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the evidence, specifically as regards its finding that the Principle Applicant was not credible?

[11]            At the heart of this Decision lies an adverse credibility finding by the Panel. The Panel concludes that the Principal Applicant's credibility "has been so seriously undermined that it causes [the Panel] to make a general finding of lack of credibility respecting the central elements of [the Principal Applicant's] refugee protection claim."

[12]            The central elements of the Principal Applicant's claim were that she had been retained by Edith Acevedo's aunt to investigate Edith's death. As a result of this investigation, the Principal Applicant found irregularities in police operations that had resulted in Edith being killed by a Sergeant Bogolieu and two other police officers.

[13]            The Principal Applicant claimed that her investigation revealed that Edith had been killed by mistake; the police had been trying to kill another girl linked to a prostitution network operated by Sergeant Bogolieu and other members of the Buenos Aires police department.

[14]            As a result of what the Principal Applicant had uncovered during her investigation, the Applicants, in a series of incidents, were threatened in various ways, including death.

[15]            The Panel did not believe these central elements of the claim because:

1.          Edith Acevedo's death was reported in both Argentinian and international publications that made no mention of the Principal Applicant's involvement in the case or the police officers identified by the Principal Applicant. The publications identified other officers as being responsible and under investigation. One article, in the Clarin newspaper, identified Roberto Damboriana as the lawyer representing the Acevedo family;

2.          The Panel's Research Directorate was unable to find the names of the police officers the Principal Applicant had referred to;

3.          The publications did not identify police corruption and a prostitution ring as lying behind Edith Acevedo's death;

4.          The Applicants had failed to make refugee protection claims in Canada in January/February 2002 when they came on vacation, even though they claimed to have experienced police threats on four separate occasions in December 2001, and they returned to Argentina;

5.          The Principal Applicant's continuing to practice law until May 2002 in Argentina was inconsistent with a subjective fear of persecution at the hands of the police.

[16]            When these discrepancies were put to the Principal Applicant, she offered the following explanations:

1.          Citizens in Argentina are often subjected to police corruption and what is reported in the media is different from what happens in reality;

2.          She returned to Argentina in January/February 2002 after being in Canada on vacation because she had discontinued her involvement in the investigation of Edith Acevedo's death, and so she thought she would be safe;

3.          It was on April 15, 2002, that two police officers entered her home in Argentina and threatened to kidnap her daughter, and this is what finally made her decide to leave Argentina.

[17]            In its Decision, the Panel deals with these explanations offered by the Principal Applicant and concludes that it still cannot accept the central elements of her claim for the following reasons:

1.          The documentary evidence was preferable because it came from independent sources with no interest in the outcome of the Applicants' refugee claim;

2.          The police officers involved in Edith Acevedo's killing were named by the documentary sources and they were not the police officers identified by the Principal Applicant;

3.          The Research Directorate could not find any reference to the police officers identified by the Principal Applicant in her PIF;

4.          The Argentinian Constitution provides for freedom of speech and the press and, even though public officials may harass the press, the media involved were privately owned and published freely and vigorously;

5.          Given the freedom and vigour of the press in Argentina, it was implausible that there would be no media reports of the Principal Applicant's alleged investigation;

6.          The Principal Applicant's explanation for why she failed to make a Refugee claim in January/February 2002 and returned to Argentina was unreasonable given that, prior to her departure from Argentina in January 2002, she said that the police had threatened to kill her and her daughter.

[18]            The Applicants raise several principal objections to the Decision.

Discrepancies in Reports

[19]            First of all, the Applicant says there were contradictions and discrepancies in the publications relied upon by the Panel and that dealt with Edith Acevedo's death. The Panel should have considered and construed the contradictory information.

[20]            My review of this issue leads me to conclude that the Panel was not blind to some of the differences between the reports about Edith Acevedo's death. The Panel's position was that the death of Edith Acevedo was widely reported, but no mention was made of the Principal Applicant's involvement in the investigation or, more importantly, the police officers identified by the Principal Applicant as being responsible for Edith's death. In fact, other officers were identified. The discrepancies between the reports concerning the exact details of how Edith died did not remove these central elements of concern identified by the Panel. In fact, the Panel had its Research Directorate look for the names of the police officers referred to by the Principal Applicant but no mention of their names was found.

Police Cover-Up and Media Spin

[21]            The Principal Applicant testified that the reasons the publications gave a different account of Edith Acevedo's death was because the death was motivated by police and political corruption and there was a cover-up. The named police officers were merely taking "the fall." The Applicants say this is a plausible and reasonable explanation as to why the story was manipulated in the media.

[22]            Once again, my reading of the Decision shows the Panel to have been alive to this issue. The Panel clearly examines the freedom and vigour of the press and other media in Argentina and concludes that they are independent and reliable sources of information. Of course, it is possible to disagree with this conclusion, but the issue was addressed by the Panel and this Court should not interfere with its conclusions in this regard unless there is a reviewable error.

Implausibility Finding

[23]            The Applicants argue that the Panel erred by impugning the Principal Applicant's credibility based upon implausibility findings, specifically as regards the issue of police corruption. The Applicants refer the Court to the cautionary remarks on implausibility found in Garcia v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 387 , 2003 FCT 279 and Shenoda v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 273, 2003 FCT 207.

[24]            This criticism by the Applicants has to be looked at in light of the Decision as a whole. The heart of the Decision is the contradiction between the narrative offered by the Principal Applicant concerning her involvement in the Edith Acevedo affair and the accounts of that affair contained in the several publications referred to by the Panel. In light of what the publications reported on highly material factors, the Principal Applicant's account lacked credibility. This, together with the other concerns (failure to claim refugee protection earlier, return to Argentina after threats had been made, and continuing to practice law until May 2002) led the Panel to conclude that overall credibility was the major concern, and this rendered the Applicant's explanations and assertions regarding the role played by police and political corruption in this matter implausible.

[25]            I see no reviewable error in this regard.

Conclusions

[26]            I regard the above issues as central to this application. The Decision stands or falls on the way the Panel addressed these matters. It is possible to disagree with some of the Panel's conclusions, but the Panel gave sufficient reasons and referred to sufficient evidence to support its central finding that it could not believe the principal elements of the Applicant's narrative. In the end, the Applicant is merely asking the Court to re-weigh the evidence and come to a different conclusion to that reached by the Panel. But that is not the purpose of this application and the Court declines to intervene in the Decision.

                                                  ORDER

THIS COURT ORDERS that:

1.          This Application for judicial review is dismissed.

2.          There are no questions for certification.

"James Russell"

        JFC

                                                                       ____________________________________________

                          FEDERAL COURT OF CANADA

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                      IMM-2330-03

STYLE OF CAUSE:                     ALEJANDRA MYRIA LOPEZ ET AL

v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              CALGARY, ALBERTA

DATE OF HEARING:                 JANUARY 28, 2004

REASONS FOR ORDER         THE HONOURABLE MR. JUSTICE RUSSELL

AND ORDER OF:

DATED:                                        FEBRUARY 26, 2004

APPEARANCES:

MS. LORI A. O'REILLY              FOR THE APPLICANT

MR. ROBERT DRUMMONDFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

O'REILLY LAW OFFICEFOR THE APPLICANT

CALGARY, ALBERTA

MR. MORRIS ROSENBERGFOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA