Date: 20000426
Docket: IMM-722-99
Ottawa, Ontario, the 26th day of April, 2000
Present: The Honourable Mr. Justice François Lemieux
Between:
LUZ STELLA SALAS GUZMAN
ISABEL CHRISTINA RODRIGUEZ SALAS
LUX FANNY GUZMAN DE SALSA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons stated, this application for judicial review is dismissed. No question was proposed for certification, nor is one called for.
Certified true translation
Martine Brunet, LL.B.
Date: 20000426
Docket: IMM-722-99
Between:
LUZ STELLA SALAS GUZMAN
ISABEL CHRISTINA RODRIGUEZ SALAS
LUX FANNY GUZMAN DE SALSA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] On December 23, 1998, Ms. Luz Stella Salas Guzman, her daughter Isabel Christina Rodriguez Salas and her mother Luz Fanny Guzman de Salsa were denied refugee status by the Refugee Division (the "panel"). Ms. Luz Stella Salas Guzman is the principal claimant and bases her claim on grounds related to her membership in a particular social group, human rights activists in Colombia, and her alleged political opinions.
[2] The applicants left Colombia on October 23, 1996 with passports issued in July 1996, after obtaining a U.S. visa on September 14, 1996.
B. PANEL"S DECISION
[3] The panel found that the applicants had not discharged their burden of demonstrating that they did indeed have a well-founded fear of persecution. In fact, the panel was not persuaded that the principal claimant was actively working within a social group that defends human rights in Colombia.
[4] Following an analysis of the documentary evidence, the panel concluded that human rights activists in Colombia do in fact have a well-founded fear of persecution; this evidence reports recent assassinations of human rights activists (exhibit A-16 " Fédération Internationale des Ligues des Droits de l"Homme, Lettre Hebdomadaire , May 7, 1998 and exhibit A-18 " Amnesty International, Colombia: Pas de sécurité pour les défenseurs des droits de l"homme, 1997).
[5] First, the panel summarizes the allegations of Ms. Guzman, who said she had been a teacher since 1974. She stated, inter alia, that she was active in her union and in some educational committees and was recognized as a front-line fighter who denounced abuses committed by the police, the paramilitary and the guerrillas in Colombia.
[6] Ms. Guzman testified that she had been "[Translation ] identified by the authorities through demonstrations, discussions, meetings... since April 1981, beaten and finally released after intervention by her union". In December 1995 she participated in the organization of a demonstration. During this event, she reports, she was detained, beaten and identified by the authorities. When released, she testified, she was warned by these authorities that she would be under surveillance from now on. However, she says, she continued her involvement and the activities related to it.
[7] On August 24, 1996, she participated in another demonstration in which she again denounced the abuses being committed in Colombia. Following this demonstration, some armed individuals confiscated documentary records and vandalized her home, an agrarian activist colleague disappeared and a search was launched for her, not to mention that other colleagues of hers were beaten.
[8] Warned by the father of her daughter that her daughter and herself were being sought by the authorities, she left the country accompanied by her daughter and her mother.
[9] Observing the profile of the principal claimant and taking into account the fate meted out to human rights activists in Colombia, the panel stated:
| Confronted by the refugee claim officer [RCO] with these years [1981 to 1996] in which, notwithstanding the arrests, threats and surveillance by the authorities, she continued her activities without thinking of leaving the country, she answered that the hope of change motivated her to carry on. Furthermore, she said, on September 3, 1996 [the day following the search of her papers at her home], she did not think of leaving her country. But four days later, when her daughter was allegedly being sought, she decided to leave, this being the only alternative in her view. In our view, delaying one"s departure for 15 years while enduring the threats of individuals whose violence, radical and bloody measures she was well aware of, is not conduct that is plausible with the profile cited. |
| Furthermore, our decision is irrevocably influenced by one fundamental aspect. We stated previously that the documentary evidence abundantly discusses the fate meted out to human rights activists in Colombia. Yet the claimant, when confronted by the RCO with some documents listing the accounts of recent assassinations of human rights activists, could not, after the victims were identified, relate the victims to some events. And she said she did not know the date of the national human rights day, which is celebrated September 9. These examples, in our view, are conclusive and confirm our decision. Finally, when invited to translate for us the recent information received concerning colleagues who had remained in the country, she replied that she was unaware of their fate. This answer, which in our view illustrated a lack of interest for some so-called peers, was decisive to our negative decision. [Emphasis added] |
C. EVIDENCE FILED AFTER THE HEARING
[10] On November 27, 1998, the applicant"s counsel sent the panel three additional exhibits; they were received November 30, 1998 and filed pursuant to the following oral exchange among the chairperson, the adviser and the principal applicant at the end of the hearing on November 2, 1998 (the chairperson is addressing the principal claimant"s lawyer, at page 967 of the certified record):
| Except that, given the importance of the social group, some groups at risk, to qualify there must still be some evidence in support, Counsel. O.K. We are going to ask the claimant to find, I can give you some examples, a more probative, clearer document of the union, some testimony, some affidavits of colleagues. This group is not a fly-by-night outfit, there are some people who were working with it. |
| And, apart from that, there is still a possibility to get them, those documents. There is still not... the wiretaps are not listened to throughout the country. All right. There are some faxes, the mail is not opened systematically. She says "I did not contact anyone." Well, she is going to have to do that, she is going to have to do that. I understand that she does not want to jeopardize the life of anyone, but I think that she understands very well. |
[11] According to the transcript, the principal claimant, addressing the chairperson, said she did not know what document she could obtain and that her friends could send to her. The chairperson replied to her as follows (page 969 of the certified record):
| O.K. Madam.... Mr. Dumoulin will explain to you, agreed? For example, testimony from your educational institution, for example. Your educational institution certainly... that does not endanger the life of anyone, a school record, and no doubt your educational institution, Madam, was aware of your activities. So it is that kind of thing. |
| I am certain that you are very vigilant about the protection and safety of your colleagues who have stayed down there, but there are still some agencies or individuals. And as I am telling you, there is no monitoring of the mail in the country as a whole. I think a request can remain between your contact and yourself, Madam. |
[12] The following are the three exhibits that were filed:
| (a) Exhibit P12: (page 53 of the certified record) |
[Translation] CERTIFY that Ms. LUZ STELLA SALAS GUZMAN, identified with the assistance of her citizenship card number 31292505 issued in Cali Valle, was my co-worker at the José Eusebio Caro school #6 of this municipality from 1992 to 1996, the year in which she abandoned the region; during this period, she stood out in the community by her clear and determined positions with regard to enforcing human rights, and as a member of the Single Union of Teachers in Valle des Cauca SUTEV, participating actively in all the activities organized by the union.
| (b)Exhibit P-13 is written by Betty Soto on November 6, 1998: |
[Translation]
Ms. Luz Stella Salas Guzman hid at my place from September 3 to 7, 1996 with her mother and her daughter, leaving us to go toward a place unknown to me.
I later learned that they fled to Bogota where they remained until their departure from Colombia.
| (c)Exhibit P-14, a document issued in 1997, is a certificate of appreciation issued by the Mission Bon Accueil in recognition of Stella Salas" contribution as a volunteer. |
[13] The applicants base their well-founded fear of persecution on the principal claimant"s membership in a social group, "human rights activists".
[14] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada held that three categories of social groups could be included in the notion of a Convention social group. The second category is groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association. The Court recognizes that this category would include, for example, human rights activists.
[15] The panel cited two factors to justify its conclusion that Ms. Guzman is not part of a group of human rights activists in Colombia. The first, the fundamental aspect irrevocably influencing the panel"s decision, lay in the applicant"s inability, when confronted with some documents listing accounts of recent assassinations of human rights activists, to relate these identified murder victims to some events that had occurred.
[16] Furthermore, when asked the applicant said she did not know the date of the national human rights day, which is celebrated on September 9. The panel also noted that the applicant had put off fleeing for fifteen years "while enduring the threats of individuals whose violence, radical and bloody measures she was well aware of", conduct that is inconsistent with the profile of a person having a well-founded fear of persecution, it said.
[17] Counsel for the applicants cites a number of reasons justifying the Court"s intervention in this matter:
| (1) No mention by the panel of exhibits P-12, P-13 and P-14, although they were supplied after the hearing pursuant to the panel"s invitation; |
| (2) the panel"s misreading of the evidence; |
| (3) the principal claimant was able to explain why she had not left Colombia prior to 1996: she had requested a school transfer to another region, and prior to 1996 she had not felt personally threatened; |
| (4) contrary to the panel"s finding, the principal claimant had a good knowledge of the recent events in Colombia and had correctly identified the accounts of recent assassinations of human rights activists; |
| (5) the panel committed some egregious errors in its analysis of the evidence; and |
| (6) obviously, the principal claimant"s lack of knowledge concerning recent events was not the central factor that had led the applicant to leave Colombia in 1996. |
[18] The respondent"s counsel notes that:
| (1) it is the panel"s task to assess the evidence; |
| (2) the panel"s conclusion concerning the principal claimant"s conduct between 1981 and 1995 is reasonable, taking into account her story about these years contained in the Personal Information Form; |
| (3) exhibits P-12, P-13 and P-14 filed after the hearing do not conform to what the panel demanded: the panel asked that the principal claimant provide it with direct evidence from her educational institution (pages 161 and 163 of the transcript); |
| (4) the panel wanted to be satisfied that Ms. Guzman was indeed active, but the transcript confirms its finding as to her lack of knowledge in relation to human rights activists in Colombia (pages 133 et seq. of the transcript); she did not know the name of the president of the Civic Human Rights Committee in Méta; she did not know the names of two individuals in the human rights committee in Segovia who were assassinated in a massacre on March 5, 1997, and, although she was aware of the existence of the well-known organization, the CINEP, she did not know who was its director in 1996-97. |
[19] The submissions by counsel for the applicants gave me much to think about. However, after reviewing the transcript and comparing what is said there with the remarks of counsel for the respondent, I have concluded that this Court"s intervention cannot be justified in the circumstances.
[20] Essentially, what the applicants" counsel invites me to do is to re-weigh the evidence that was before the panel and to arrive at a conclusion different from it; something that I am unable to do under the applicable legal principles governing judicial review of the decisions of administrative tribunals.
[21] On this issue, Madam Justice L"Heureux-Dubé is unequivocal, in Canadian Union of Public Employees, Local 301 v. Montreal (City) , [1997] 1 S.C.R. 793, at page 844:
| 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one. ... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal"s findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal"s decision. |
[22] Likewise, there is food for thought in what Décary J.A. writes in Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.). He writes at page 316 of his reasons:
| [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.... 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. In this case, the appellant has not discharged this burden. |
[23] Finally, the Federal Court of Appeal, in the words of Stone J.A. in Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907, reminds me of the limitations on my power of intervention, at page 2:
| The Refugee Division"s decision turned wholly on an adverse finding of the appellant"s credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant"s story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division. |
[24] The principal claimant"s answers to the questions asked about her knowledge of recent events in Colombia were relevant since they directly affected the basis of her application for refugee status, namely, whether she was indeed a human rights activist. It is true that she had knowledge of certain events and that, in other circumstances, she explained how she could recall a name or an event; however, she could not remember several important events (certified record, pages 947, 948 and 949) and the date of the national human rights day.
[25] After reading the principal claimant"s PIF and reviewing the transcript, I am unable to conclude that the panel"s finding of implausibility in the principal claimant"s conduct between 1981 and 1995 was unreasonable and not based on the evidence.
[26] It is true that the panel did not comment specifically on exhibits P-12, P-13 and P-14 filed after the hearing. It would have been preferable if it had done so. In this regard, the remarks by Hugessen J.A. in Florea v. Canada (Minister of Employment and Immigration, [1993] F.C.J. No. 598 (F.C.A.) are opportune:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal"s findings are supported by the evidence, the appeal will be dismissed. |
CONCLUSION
[27] For all these reasons, this application for judicial review is dismissed. No question was proposed for certification, nor is one called for.
Ottawa, Ontario
April 26, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: LUZ STELLA SALAS GUZMAN et al. v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 4, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: APRIL 26, 2000
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANTS
JOCELYNE MURPHY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANTS
MORRIS ROSENBURG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
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