Date: 20010111
Docket: IMM-1687-00
Between:
EDGAR ALBERTO ANAYA CORNEJO,
Applicant,
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
Muldoon, J. :
[1] The applicant seeks from this Court leave to start an application for judicial review, pursuant to sub-section 82.1(1) of the Immigration Act, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (C.R.D.D.), dated March 16, 2000, wherein the C.R.D.D. determined that the applicant is not a Convention refugee. The I.R.B. number accorded to the claimant's file is T-99-03979.
[2] The C.R.D.D.'s written, unanimous decision is so highly concentrated and compressed that it is difficult to summarize it accurately. It runs as follows:
| [The claimant] is a 30-year-old citizen of El Salvador who claims Convention refugee status because of his political opinion and his membership in a particular social group. He alleges a fear of persecution in El Salvador at the hands of unidentified unknown Farabundo Marti National Liberation Front (FMLN) members because of his membership and activities in the National Republican Alliance (ARENA) party in the province of Sonsonate and the Eastern Region of El Salvador. |
| The claimant alleges that the difficulties that he encountered with alleged FMLN supporters were related to his political campaign preparations which began in April 1998 for the March 1999 presidential elections. |
| The claimant alleges that on several occasions while preparing for the campaign, he and his ARENA group were confronted by FMLN members using abusive language against them and on one of those occasions in Sonsonate, he was told that he would later find out who they were and that he would be sorry for his ARENA party involvement. He alleges that in September and October 1998, he received two anonymous death threatening notes. He alleges that in October 1998, he was followed by a vehicle, several gun shots hit his vehicle and he managed to escape his pursuers. He alleges that he reported the incident to the police who sent a patrol to look for his attackers but they were unable to find them. He alleges that he experienced a similar incident a few weeks later. He alleges that in November 1998 he received an anonymous death threatening telephone call that challenged him to see if the ARENA party could protect him. He alleges that he reported the messages, telephone threats and attempts to kill him, to the National Civil Police (PNC) in Santa Tecla. He alleges that despite providing the police with a full account, they told him that they could start an investigation, but it would probably be unsuccessful if he was unable to provide any specific names. He alleges that at the end of November 1998, he was intercepted at the Central Market in San Salvador by two individuals but he managed to escape due to the confusion of the busy location. He alleges that he twice returned to the Santa Tecla police station for assistance but they advised him that nothing could be done until he could identify particular individuals. He alleges that after moving his family to live with relatives, he left El Salvador on December 7, 1998. |
| The determinative issue in this claim is whether the claimant's fear of persecution at the hands of the FMLN supporters or any groups linked to them, that is paramilitary, police, army or any other government authorities, is objectively well-founded.1 |
| The panel recognizes that there has been a history of political violence in El Salvador. The documentary evidence2 indicates that both the FMLN and ARENA parties accused each other of instigating political violence before the 1997 legislative and municipal elections. With regard to the 1999 presidential campaign that the claimant was involved in and preparing for, the documentary evidence3 states that the political parties of El Salvador entered into an agreement to commit themselves to an electoral campaign of some moral and political stature and, until January 20, 1999, the date of the report, had complied with this commitment in good degree, with the exception of some few incidents. These incidents, which ended in blows, are the result of actions by the ARENA and the FMLN. A March 7, 1999 report by the Washington Post4 described the presidential race as a "low-key campaign largely devoid of personal and ideological attacks." |
| Although the documentary evidence5 points to the extremely high rates of violent crimes in El Salvador, there are no specific incidents of political violence directed at the ARENA party which was at the time of the claimant's difficulties the ruling party, and still is today. Most cases of disappearances have been kidnapping for profit, which affects all levels of society and has become an occurrence throughout the country.6 None of the forced disappearance cases accepted for investigation by the Ombudsman for the Defence of Human Rights (PDDH) during 1998 involved allegations of political motivation.7 Given the extensive documentary evidence, in the absence of persuasive objective evidence, the panel accords more weight to independent sources which have no interest in the outcome of this particular claim. Therefore, the panel finds that the claimant's fear is not objectively well founded and that there is less than a mere possibility that he would be persecuted in El Salvador for his ARENA party participation in the preparations for the 1999 presidential campaign or his affiliation with the party which is governing El Salvador today. |
| Accordingly, the Refugee Division determines that Edgar Alberto Anaya Cornejo (Cornyo) is not a Convention refugee. |
Elena Schlanger
"Dian J. Forsey"
Dian J. Forsey
| DATED at Toronto this 16th day of March 2000. |
[3] At the hearing of this application in Toronto, on January 9, 2001, the applicant's counsel made much of what he was told by the C.R.D.D. panel upon their hearing of the case:
| FORSEY Okay, thank you. That's all the questions that I have. |
| SCHLANGER Okay, Counsel, before you go to re-direct, I just want to mention to you that the panel has no credibility concerns at this point anymore; that issue is eliminated. |
[4] This Court accepts that the C.R.D.D. presiding member declared what is written above, but she did not indicate that the claimant had persuaded the C.R.D.D. that the claimant had made out his case to be determined to be a Convention refugee. She said nothing of the kind. The transcript continues:
| SCHLANGER Okay, so the issues that remain, we would like you to still address the nexus and the agents of persecution. |
| The objective basis, in view of the documentary evidence, if you could point us to anything specific regarding the targeting of ARENA members and also - so objective basis and state protection. |
| Is there anything else that you would like to... |
| FORSEY No, under the objective basis, Counsel, maybe if you could cover how these various incidents are perceived by your client as being distinguished from the general violence that the panel is quite aware of in El Salvador. |
| COUNSEL I will, you can be assured I will do this. |
| Mr. Anaya, this brings is[sic] to the conclusion of your hearing, your testimony that is. |
| Counsel will be making written submissions with regards to the remaining issues and, once we have reached a decision, you will be advised in writing. |
| We will set a date for the receipt of... |
| COUNSEL Yeah, if you could. |
| SCHLANGER Okay, so the - that would be the 26th January, is it? |
| I guess, that's what it is. Okay. Thank you. |
[5] Upon the hearing in Court, the Minister's counsel argued that the transcript reveals nothing untoward, nor yet any reason to quash the C.R.D.D.'s decision. The C.R.D.D. panel was obliged to determine whether the claimant, having demonstrated to their satisfaction a subjective fear of persecution, had also an objective fear of persecution. That is why the panel sought documentary evidence upon which objective fear of persecution could be determined, but the panel found - quite within its mandate - "that the claimant's fear is not objectively well founded and that there is less than a mere possibility that he would be persecuted in El Salvador for his ARENA party participation in the preparations for the 1999 presidential campaign or his affiliation with the party which is governing El Salvador today", p. 13 of the applicant's record. The C.R.D.D. was correct in its determination herein. Ergo the application must be dismissed. This Court declines to certify the question which the applicant's counsel was not quite prepared to pose to the Court.
[6] Counsel informed the Court that he was obliged to attend another hearing, before another Court, immediately upon the end of this present hearing. He was offered the opportunity to formulate his proposed question following a recess, but he declined the offer.
ORDER
[7] THIS COURT ORDERS that this application for leave and judicial review of the C.R.D.D.'s decision, No. T-99-03979, dated March 16, 2000, be and it is hereby dismissed.
"F.C. Muldoon"
Judge
Toronto, Ontario
January 11, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: EDGAR ALBERTO ANAYA CORNEJO |
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
| DATE OF HEARING: TUESDAY, JANUARY 9, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
DATED: THURSDAY, JANUARY 11, 2001
| APPEARANCES BY: Mr. Adelso Mancia Carpio |
| SOLICITORS OF RECORD: Adelso Mancia Carpio |
MANCIA AND MANCIA
335 Bay Street
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20010111
Docket: IMM-1687-00
BETWEEN:
| EDGAR ALBERTO ANAYA CORNEJO |
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
AND ORDER
__________________
1 The panel has considered counsel's written submissions of January 31, 2000.
2 Exhibit R-3, Response to Information Request, No. SLV31652.E, April 16, 1999, DIRB, IRB.
3 Ibid., Response to Information Request, No. SLV31922.E, June 15, 1999, DIRB, IRB.
4 Ibid.
5 Exhibit R-2, CRDD Information Package , Updated September 1999, item 1.5, "The National Civilian Police (PNC)", pp.20-21; Exhibit C-2, pp. 45 and 63.
6 Exhibit R-1, Country Report on Human Rights Practices for 1998 , United States Department of State, February 26, 1999.
7 Ibid.
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