Date: 20010613
Docket: IMM-2248-00
Neutral Citation: 2001 FCT 643
Ottawa, Ontario, this 13th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MARIA TRINIDAD CORTES HERNANDEZ
ROMAN LOPEZ CORTES
KARINA IVONNE SANCHEZ GONZALEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review brought pursuant to section 82 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of the decision of the Immigration and Refugee Board (the "Board") dated April 10, 2000. In its decision, the Board determined Maria Trinidad Cortes Hernandez, Roman Lopez Cortes and Karina Ivonne Snachez Gonzales not to be Convention refugees.
[2] The applicants seek an order setting aside the above decision, an order referring the matter back to the Board for determination with directions that the applicants be found Convention refugees or, in the alternative, an order referring the matter back to the Board for redetermination in accordance with such directions as the Court deems appropriate.
Background Facts
[3] The applicants, Maria Hernandez, her son Roman Cortes and his common law wife, Karina Gonzales are citizens of Mexico. Maria Hernandez entered Canada on November 26, 1996 and later made a refugee claim in 1997. Roman Cortes and Karina Gonzalez entered Canada on August 4, 1998 and later made refugee claims.
[4] In her Personal Information Form, Maria Hernandez claimed she was a victim of abuse at the hands of her common law spouse, Raul Nunez Ricarte. Maria Hernandez was employed at the offices of PEMEX in Mexico City, a state owned oil company. Raul Nunez Ricarte was also employed there, allegedly as a "high ranking officer". Maria Hernandez and her son Roman Cortes moved in with Raul Nunez Ricarte in 1990. Maria Hernandez alleges Raul Nunez Ricarte abused her and beat her numerous times, both at work and at home over a period of four years, the first major incident being in June, 1990. Initially, Maria Hernandez stated she lived with Raul Nunez Ricarte for four years, however, she indicated at the hearing of her claim that she lived with him for only three years.
[5] Maria Hernandez eventually reported her problems to PEMEX and to the police, but nothing was done. She alleges she lost her job when Raul Nunez Ricarte forged her signature on a letter of resignation. In January, 1994, Maria Hernandez moved to another city to work in a newly opened PEMEX office, but because she was questioned about Raul Nunez Ricarte, she resigned and returned to Mexico City after one week. In Mexico City, Maria Hernandez hid at her uncle's home, but was found and threatened by Raul Nunez Ricarte on two occasions. She then moved into a Senior's Home where she was employed, but was again found by Raul Nunez Ricarte. In February, 1996, Maria Hernandez fell and fractured her ankle when she was nearly hit by Raul Nunez Ricarte's car. In November, 1996, Raul Nunez Ricarte tried to force her into his car outside of the Senior's Home. A police car passing by at the time stopped, but let him go despite Maria Hernandez's complaints.
[6] Roman Cortes and Karina Gonzalez claim they were followed, intimidated, and harassed by Raul Nunez Ricarte after Maria Hernandez left Mexico. Roman Cortes was forced into a car by some men in April, 1997, hit, and questioned about his mother's whereabouts. He reported the incident to the police the next day, however, they did not write a report because he showed no visible marks from the incident. In June, 1998, Roman Cortes was again forced into a car, beaten, and questioned about his mother's whereabouts . He did not go to the police because those who beat him threatened Karina Gonzalez. Karina Gonzalez was herself forced into a car and questioned about Maria Hernandez's whereabouts in June, 1998. Raul Nunez Ricarte was not present on any of these occasions.
[7] The applicants' claims were heard July 8, 1999 and August 26, 1999. In finding the applicants not to be Convention refugees, the Board stated in part the following at pages 1 and 2 of its decision:
The panel determines that none of these claimants are Convention refugees. They did not provide sufficient credible or trustworthy evidence to establish their claim to have a well-founded fear of persecution in Mexico for a Convention reason. In addition, they did not seek state protection, which was reasonably available to all of them. As a further alternative, they all had an Internal Flight Alternative (IFA) available to them in Mexico.
ANALYSIS
The panel has considered all of the evidence in these claims, including the claimants' Personal Information Forms, their oral testimony, the documentary materials filed by the Refugee Claim Officer (RCO) and counsel, along with counsel's submissions. The panel has also considered the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Update.
[8] Issues
1. The tribunal members erred in law by ignoring expert psychological
evidence which explains Maria Cortes Hernandez's problems in giving consistent testimony regarding her traumatic experiences of domestic abuse.
2. The tribunal erred in law by failing to observe the Refugee Board's own Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and failing to be responsive in its reasons respecting credibility to what is known about women such as the applicant, Maria Cortes Hernandez, who suffered domestic violence.
3. The tribunal erred in law when it ruled the applicants, Roman Lopez Cortes and Karina Ivonne Sanchez Gonzalez were unable to provide any satisfactory explanation for their failure to tell individuals harassing them that the applicant, Maria Cortes Hernandez had departed Mexico.
4. The tribunal similarly erred in law by making a number of unreasonable findings and conclusions based on plausibilities which were not reasonably open to it.
5. The tribunal erred in law by failing to determine the reasonableness of Maria Cortes Hernandez's recourse to an internal flight alternative and her ability to as a woman, by reason of her gender, to travel safely to the IFA and to stay there without facing undue hardship.
Applicants' Submissions
[9] The tribunal members erred in law by ignoring expert psychological evidence which explains Maria Cortes Hernandez's problems giving consistent testimony regarding her traumatic experiences of domestic abuse.
The applicant, Maria Hernandez was seen by Maria S. Undurraga, a registered psychologist, after her arrival in Canada. This psychologist's report was filed in the applicants' refugee hearing. The applicants submit the report concluded that Maria Hernandez suffered and continues to suffer the stress symptoms that characterize battered wife syndrome, as well as symptoms of post-traumatic stress disorder. The report also specifically addressed her inability to recall important aspects of the trauma and her difficulty recalling specific times, sequences and dates.
[10] The applicants submit the Board, while impugning Maria Hernandez's credibility, did not mention this report in its reasons. The failure to consider it amounts to a reviewable error as the Board ought to have considered it.
[11] The applicants offer Sanghera v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 155 (F.C.T.D.), where the Court states at pages 157 to 158:
The Tribunal expresses concern about the " . . . somewhat evasive and confusing" nature of the Applicant's testimony. It acknowledges the submissions of Applicant's counsel in this regard relating to the passage of time and the Applicant's "minimal educational standards". The Tribunal appears to completely ignore evidence before it in the form of a written psychiatric report that indicates the Applicant suffers from Post-Traumatic Stress Disorder and Depression with the result that " . . . he gets very forgetful, loses his train of thoughts, concentration and becomes very afraid, especially when the past is discussed." The Applicant is entitled to an assurance that such evidence was taken into account in the credibility finding against him that apparently was based on the evasiveness and confusion in his testimony.
[12] The applicants argue that because the Board made its assessment respecting the credibility of all the applicants in part, on the testimony of Maria Hernandez, the decision respecting the claims of all the applicants cannot stand.
[13] The tribunal erred in law by failing to observe the Refugee Board's own guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and by failing to be responsive in its reasons respecting credibility to what is known about such women such as Maria Hernandez, who suffered domestic violence.
The applicants submit, apart from the Board merely mentioning that it considered the Gender Guidelines, there is no evidence that they were followed with respect to the Board's analysis of Maria Hernandez's evidence.
[14] According to the applicants, the Board must consider the evidence from the perspective of the teller and give careful consideration to what conduct might be expected from a woman living under the violent conditions described. Failure to do so constitutes a reviewable error.
[15] The Board's failure to properly assess Maria Hernandez's credibility also affects the Board's decision that there was an internal flight alternative ("IFA") available. A finding that an IFA is viable, attainable and accessible, depends on a full understanding of the applicants' condition. Thus, the applicants submit the Board's decision that there was an IFA cannot stand.
[16] The tribunal erred in law when it ruled the applicants, Roman Lopez Cortes and Karina Ivonne Sanchez Gonzalez were unable to provide any satisfactory explanation for their failure to tell the individuals harassing them that Maria Cortes Hernandez had departed Mexico.
Roman Cortes witnessed the effects of his mother's abuse at the hands of Raul Nunez Ricarte. He was fearful that Raul Nunez Ricarte would reach his mother if he divulged her whereabouts. The applicants submit this fear was expressed more than once during the course of the refugee hearing. The Board ignored this evidence when it stated that no satisfactory explanation was given and made an adverse determination as to his credibility. The applicants argue the Board erred in law by doing so and offer Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (F.C.A.) in support thereof.
[17] The applicants submit that where the Board's findings of plausibility are based on inferences that are not reasonably open to it, the decision will be quashed. The Court, in the applicants' submission, is in the same position as the Board when assessing findings of credibility that are based on inferences drawn from the evidence and may intervene if the conclusions of the Board were not reasonable ones: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.).
[18] The tribunal similarly erred in law by making a number of unreasonable findings and conclusions based on plausibilities which were not reasonably open to it.
The applicants submit the Board's finding that the April, 1997 attack on Roman Cortes did not take place because he waited a day to report the incident, had no apparent injuries, and failed to give a motive for the attack, is perverse and made without regard to the evidence before it.
[19] The Board's finding that Raul Nunez Ricarte was not an important PEMEX figure at the times relevant to the claim because he did not appear in the data base of present employees, is also perverse according to the applicants. Moreover, the Board's finding that there is no indication that Maria Hernandez and Raul Nunez Ricarte had lived together because he is not listed as her beneficiary for any company benefits is perverse.
[20] The tribunal erred in law by failing to determine the reasonableness of Maria Cortes Hernandez's recourse to an IFA and her ability to, as a woman, by reason of her gender, to travel safely to the IFA and to stay there without facing undue hardship.
The applicants argue the application record contains ample evidence that although Mexico has addressed the problem in theory, it has inadequately dealt with the need to eradicate violence against women. The Board simply concluded that the Mexican government had undertaken various theoretical legal measures in the fight of violence against women. The applicants submit the Board failed to properly consider Mexico's failure to implement its measures. The applicants further submit evidence of state legislation is not conclusive evidence of the state's capacity or willingness to protect.
Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327 (F.C.A.) is offered in support of this argument.
Respondent's Submissions
[21] Credibility
The respondent submits the Court should be less inclined to interfere with the Board's findings given its ability to assess the witness' credibility in oral testimony before it.
[22] The respondent submits that negative decisions on a claimant's credibility are properly made so long as the tribunal gives reasons for doing so in clear and unmistakable terms. In Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), Justice Heald stated at page 201:
The Board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
[23] The respondent submits the Board, in the case at bar, clearly and unequivocally determined the applicants not to be credible witnesses and in the course of so deciding, offered detailed reasons for its decision citing numerous implausibilities in the applicants'
evidence. In its memorandum of fact and law, the respondent outlines 26 points made by the Board to demonstrate that the Board offered detailed reasons in making its credibility findings.
[24] The Board's credibility determination which was based on implausibility findings, should not be interfered with unless it made an overriding error. The respondent submits it was reasonably open to the Board to make an adverse finding of credibility and offers the following from Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) at pages 316 to 317:
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 Division could not reasonably have been drawn.
[25] The respondent submits that the Board's conclusions regarding the implausibility of Roman Cortes' evidence was reasonably open to it as the applicants testified he was interested in getting Maria Hernandez out of Mexico. The respondent contends it was not reasonable for Roman Cortes to refuse to at least say that his mother left Mexico when he was questioned about her whereabouts.
[26] Ignoring or Misconstruing Evidence
The respondent submits nothing in the applicants' record indicates that the Board
ignored any evidence and that there is no obligation on the Board to list or specifically refer to all of the evidence. Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) and [1973] S.C.R. 102">Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102 are offered in support of this submission.
[27] The respondent contends it is clear from the transcript of proceedings that the psychologist's report was before the Board and that applicants' counsel made submissions regarding it. Thus, the respondent submits there is no evidence to support the applicants' argument that the Board failed to consider the report. Moreover, the respondent argues that a careful examination of the report does not necessarily lead to the conclusion that Maria Hernandez was confused about the dates due to "battered woman syndrome". The report does not explain the "problems" Maria Hernandez had in giving evidence.
[28] State Protection
The Board concluded in the alternative that if the applicants had been found to be credible, state protection was available but never effectively sought. The respondent submits Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 has set out the principles of law with respect to the issue of state protection. It was reasonably open for the Board, in the respondent's submission, to find that the applicants had not shown with clear and convincing proof that the state was unable to protect them.
[29] Internal Flight Alternative (IFA)
The respondent submits persecution in a given region will not be persecution within the meaning of the Convention, if the government is capable of providing the necessary protection elsewhere within its territory. It must also be reasonably expected, having taken all of the circumstances into consideration, that victims will move to that part of the territory where they will be protected.
[30] In light of the principles set out in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.), the respondent submits the Board properly determined that the applicants had an IFA in Mexico. The applicants' evidence was examined and the Board did not accept Raul Nunez Ricarte to be a person who would have access to state facilities to hunt the applicants down in Mexico, particularly as Maria Hernandez was no longer working at PEMEX.
[31] In conclusion, the respondent submits the applicants failed to meet their onus of providing clear and convincing proof of the well-foundedness of their claim for Convention refugee status. The applicants failed to adduce sufficient credible evidence.
Relevant Statutory Provisions
[32] The definition of "Convention refugee" under the provision of the Immigration Act is:
| 2(1) "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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« réfugié au sens de la Convention » Toute personne_:
a) 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_:
(i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi.
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Analysis and Decision
[33] In reviewing the decision of the Board, I will review it on the standard of reasonableness simpliciter.
[34] Issue 1
The tribunal members erred in law by ignoring expert psychological evidence which explains Maria Cortes Hernandez's problems in giving consistent testimony regarding her traumatic experiences of domestic abuse.
The Board ruled that the evidence of the applicants lacked credibility. In so doing, the Board was careful to detail and list the offending evidence. The Board gave detailed reasons for its decision and it cited numerous implausibilities in the applicants' evidence. I agree with the respondent that "negative decisions on a claimant's credibility are properly made as long as the tribunal gives reasons for so doing in clear and unmistakable terms".
[35] The Board, in my opinion, has done that in this case in a very clear and detailed decision. This Court should be very slow to interfere with the Board's properly made decision on credibility (see Hilo v. Canada (Minister of Citizenship and Immigration) (1991) 15 Imm. L.R. (2d) 199 (F.C.A.)). I am not prepared to interfere with the Board's decision with respect to the credibility of the witnesses.
[36] The applicant, Maria Cortes Hernandez has submitted the Board erred in law by ignoring expert psychological evidence. I agree that the Board cannot ignore evidence such as this, but I have read the report of Maria S. Undurraga and I note that the factual underpinning on which the report is based is the same evidence that the Board found not to be credible. Even if I were to agree that the Board made a reviewable error by not specifically referring to this evidence, I am of the opinion that the error was not material. I am of the view that even had the Board specifically referred to the report, its conclusion would have been to dismiss the report on the basis that it did not believe the underlying facts for the report. Simpson J. in Singh v. Canada (Minister of Citizenship and
Immigration), (December 14, 1995), Docket IMM-2382-94, (F.C.T.D.) wrote at paragraphs 4 and 5:
I have concluded that the Board committed a reviewable error in failing to refer to the Report. However, in the circumstances of this case, I am persuaded that the error was not material. I have no doubt that, had the Board referred to the Report, it would have dismissed it on the basis of the applicant's evasive behaviour at the hearing. The Board simply did not believe the underlying facts upon which the Report was based and would not have accepted the doctor's perception over its own on the issue of demeanour.
The situation in this case is to be distinguished from that faced by Gibson, J. in Sanghera v. M.E.I. (1994), 73 F.T.R. 155). There, the Tribunal's findings were not firm. It merely expressed concern about the "somewhat evasive and confusing" testimony by the applicant. In that case, Mr. Justice Gibson found that failure to refer to a psychiatric report was an error which justified a rehearing. I assume he reached this conclusion because of the tentative nature of the Board's credibility finding.
I find that the Board did not make a reviewable error.
[37] Issue 2
The tribunal erred in law by failing to observe the Refugee Board's own Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and failing to be responsive in its reasons respecting credibility to what is known about women such as the applicant, Maria Cortes Hernandez, who suffered domestic violence.
The panel stated at page 2 of its decision that it considered the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Update. The decision of the Board makes it clear that the Board did not believe the applicant's Maria Trinidad Cortes Hernandez's description of what happened to her in Mexico. As I have
indicated earlier in this decision, the Board can make that type of credibility finding as long it does so in a clear and detailed manner. The only material that I have before me shows that the Board did consider the Guidelines. Therefore, no reviewable error was made here.
[38] Issue 3
The tribunal erred in law when it ruled the applicants, Roman Lopez Cortes and Karina Ivonne Sanchez Gonzalez were unable to provide any satisfactory explanation for their failure to tell individuals harassing them that the applicant, Maria Cortes Hernandez had departed Mexico.
As Raul Nunez Ricarte had earlier told Maria (before she left Mexico) to leave Mexico or she would have problems, there was no reason for Roman Cortes and Karina Gonzalez not to tell the persons who were harassing them that Maria Cortes Hernandez had left and gone to Canada. The Board simply did not believe the story. This option was open to the Board as it is entrusted with the function of determining credibility. I find that the Board did not make an error in coming to this conclusion.
[39] Issue 4
The tribunal similarly erred in law by making a number of unreasonable findings and conclusions based on plausibilities which were not reasonably open to it.
The findings of the tribunal attached under this heading included the following:
1. Roman Cortes being struck in the face with a gun with no mark being left.
The Board did not accept his explanation that he did not bruise easily. The Board noted he did not report the incident to the police until the next day and then did not tell the police who was behind the incident. Also, even though the applicant, Maria Cortes Hernandez was in contact with her family prior to her PIF being completed, the incident was not mentioned in her PIF.
2. The finding that Raul Nunez Ricarte was not an important PEMEX figure at the time. The applicants stated that the letter only said he was not a present employee. However, a review of the letter shows that the writer stated that "in her 14 years of service for PEMEX, she has never known a person with the name in question who has worked for the company".
3. No indication that the applicant, Maria Cortes Hernandez and Raul Nunez Ricarte had ever lived together because he is not listed as her beneficiary for any company benefits.
[40] It is open to the Board to draw inferences and conclusions. The Court should not interfere with this decision merely because the Court would have exercised its discretion in a different manner. The Board did not err in law in making these findings.
[41] Issue 5
The tribunal erred in law by failing to determine the reasonableness of Maria Cortes Hernandez's recourse to an internal flight alternative and her ability to as a woman, by reason of her gender, to travel safely to the IFA and to stay there without facing undue hardship.
I have read the analysis of the Board relating to an internal flight alternative and I am of the opinion that the Board reached a reasonable decision.
[42] The application for judicial review is dismissed.
[43] Neither party submitted a serious question of general importance for my consideration.
ORDER
[44] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 13, 2001
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