Date: 20020320
Docket: IMM-2815-01
OTTAWA, ONTARIO, THE 20TH DAY OF MARCH 2002
PRESENT: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
CARLOS ALBERTO SERVELLON RODRIGUEZ ET AL.
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
THE COURT ORDERS that the application for judicial review be dismissed and that no question be certified.
"Michel Beaudry"
Judge
Certified true translation
Sophie Debbané, LL.B.
Date: 20020320
Docket: IMM-2815-01
Neutral Citation: 2002 FCT 292
BETWEEN:
CARLOS ALBERTO SERVELLON RODRIGUEZ ET AL.
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BEAUDRY J.
1 This is an application, under section 82.1 of the Immigration Act, R.S.C., 1985, c. I-2 (the Act), for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated May 3, 2001, determining that the applicants are not refugees within the meaning of the Convention Relating to the Status of Refugees (the Convention).
2 All of the applicants are citizens of El Salvador. The principal applicant was Carlos Alberto Servellon Rodriguez (the applicant), and the claims of all of his family members were based on the facts that he alleged. The spouse and the children of the principal applicant therefore claimed refugee status on the basis of their membership in a family. Mr. Rodriguez claimed that he has a well-founded fear of persecution by reason of actual and imputed political opinion.
ISSUES
3 This case raises the following questions:
1. Did the Board err by concluding that the applicant's behaviour was inconsistent with a subjective fear of persecution?
2. Did the Board fail to consider certain evidence? Did it wrongly interpret the facts?
3. Did the Board breach its duty to act fairly toward the applicant?
FACTS
4 A graduate of the El Salo Military School in 1976, the applicant was a career member of the armed forces in El Salvador until October 31, 1995, on which date he resigned. He claimed that he feared for his life because he had denounced the corruption that he had witnessed within various departments of the El Salvadorian army. More specifically, the applicant alleged that he feared the "tendona", a group of former high-ranking officers who are like "death squads."
5 On one occasion, the applicant alleged that he was aware that certain high-ranking army officers had apparently purchased drugs with Salvadorean funds and had received commissions for doing so. The applicant expressed his opposition to those transactions and was transferred to the military engineering detachment. At that time, around 1990, an attempt was made to abduct his children.
6 The applicant claimed that he had witnessed fraud while at the engineering military detachment. Presumably as a result of his opposition to the corruption, an attempt on his life was made on July 24, 1991. A second attempt on his life was made on July 26, 1991, when he was attending a wedding. The applicant was also followed a number of times while he was in his automobile.
7 The applicant claimed that he witnessed fraud once again in 1993 while he was in the infantry brigade. He was pressured to keep silent. Moreover, he was threatened with dismissal and his telephone line was tapped. The applicant and his family were also tailed a number of times.
8 The applicant alleged that in June and July 1995, he travelled to the United States without however seeking protection from that country.
9 All of those events ultimately led the applicant to resign from the army on
October 31, 1995.
10 In September 1996, a number of public denunciations of corruption made by a colonel led to investigations. The applicant alleged that, fearing then for his life, he left for Los Angeles and went to his country's consulate. Since the consulate was unable to help him, he returned to El Salvador.
11 The applicant stated that from January 1997 to November 1997, he and his family enjoyed a period of calm. However, the harassment started again in November 1997. In December of that year, the applicant finally decided to leave the country and come to Canada. He and his family arrived in Canada on February 8, 1998, and claimed refugee status the same day.
BOARD'S DECISION
12 With respect to the oral testimony of Adolfo Arnoldo Majano Ramos, the Board said that that witness did not have direct contact with the applicant after 1980. For that reason, the Board decided not to rely on his testimony with respect to the facts alleged by the applicant after 1980.
13 The Board first concluded that the applicant was not excluded under article 1F(a) of the Convention. That issue is therefore not open to review.
14 The Board then addressed the issue of whether the applicant and his family are Convention refugees. It concluded that the behaviour of the applicant was inconsistent with the subjective fear that he alleged having and, therefore, that he had failed to discharge his onus of proving that there was a reasonable possibility of persecution if he returned to El Salvador. The Board added that some statements in the port of entry form that the applicant completed when he arrived in Canada were inconsistent with his testimony.
15 In support of its conclusions, the Board stated that given all of the problems experienced by the applicant since 1991, it was difficult to understand why he did not seek protection in the United States as early as 1995. The Board also found it difficult to understand that the applicant travelled back and forth between his country and the United States at least twice, returning voluntarily to El Salvador each time.
16 Moreover, considering that the applicant claimed that he was followed and that his phone was tapped, the Board did not understand how the applicant could come and go without encountering any problems. As for the explanations given by the applicant, the Board found that they were unacceptable and that they tainted his credibility.
17 The Board added that despite the attempts made on the applicant's life as early as 1991 and 1992, the tailing and the attempts to assault the applicant's family members, the applicant and his family had not left El Salvador until 1998. In the Board's opinion, that behaviour was inconsistent with the subjective fear alleged by the applicants.
18 For those reasons, the Board did not believe the applicant concerning the problems he claimed that he experienced.
19 The applicant's lack of awareness and interest regarding the investigations that were launched with respect to the corruption within the armed forces was also perceived by the Board as inconsistent with the convictions the applicant alleged having.
20 As for the resignation of the applicant's father, the Board believed that it was related to age and not to the applicant's problems. The Board was also of the view that the applicant was not entitled to his pension because he was not yet 45 years of age, and not because of his political opinions.
21 Another implausibility cited by the Board is that the applicant sent a copy of his Personal Information Form (PIF) to his sister-in-law who works in a non-governmental organization (NGO) in El Salvador, whereas the applicant claimed that his life was in danger because of his denunciations.
22 The Board explained that it gave little weight to certain documents submitted by the applicant, such as a letter from his brother and sister-in-law, since it did not believe the applicant's account of events, and also since those letters were written after the applicant had arrived in Canada. Furthermore, with respect to the complaint that the applicant brought to Codefam in El Salvador in December 1997, the Board found it surprising that the applicant did not file this type of complaint after attempts on his life were made. The Board noted that the applicant did not give a reasonable explanation on that point and that led it to doubt that attempts on the applicant's life were made in 1991.
23 For these reasons, the Board concluded that the applicant and his family are not Convention refugees.
ANALYSIS
Standard of Review
24 The Refugee Division is a specialized tribunal which has exclusive jurisdiction to hear and determine questions of law and of fact relating to Convention refugee claims. It is settled law that with regard to findings of fact, the Court should intervene only if there is a patently unreasonable error (Sivasamboo v. Canada (M.C.I.), [1995] 1 F.C. 741 (T.D.)). Furthermore, Décary J.A. has observed that the Refugee Division has complete jurisdiction with respect to plausibility and credibility of testimony (Aguebor v. M.E.I., [1993] F.C.J. No. 732 (F.C.A)). Also, in Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1, at p. 2 (T.D.), Jérôme A.C.J. stated:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it.
. . .
Furthermore, the Refugee Division is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can be reasonably said to exist. Negative findings with respect to an individual's credibility are properly made, provided the tribunal gives reasons for its decision in clear and unequivocal terms.
25 As long as the Board did not ignore the evidence, it is not for this court to substitute its decision for the decision of the Refugee Division (Oduro v. M.E.I., [1993] F.C.J. No. 560 (T.D.)). Furthermore, it is not open to the reviewing court to intervene with respect to credibility or plausibility if the decision of the Refugee Division is supported by the evidence.
26 With respect to questions of law, the Supreme Court of Canada has held that the applicable standard of review is the correctness standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
Objective and Subjective Fear of Persecution
27 The term "Convention refugee" is defined in subsection 2(1) of the Act, which reads in part as follows:
| "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) ...
|
|
« 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 dont 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) [...]
|
|
|
|
|
28 In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at p. 723, the Supreme Court determined what a claimant must do to establish a fear of persecution:
. . . the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [55 N.R. 129], supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
29 The test of "reasonable possibility " in Adjei v. MCI, [1989] 2 F.C. 683, at paras. 6-8 (F.C.A.) has been adopted in determining whether there is a risk of persecution:
The parties agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
We would adopt that phrasing, which appears to us to be equivalent to that employed by Pratte J.A. in Seifu v. Immigration Appeal Board (A-277-82, dated January 12, 1983, not reported):
. . . [I]n order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. [Emphasis added]
What is evidently indicated by phrases such as "good grounds"or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable"or even a "serious possibility", as opposed to a mere possibility.
30 In this case, the Board concluded that the applicant did not discharge his burden of proving that there was a reasonable possibility of persecution if he were to return to El Salvador.
31 More specifically, the Board determined that the applicant's behaviour was inconsistent with the subjective fear he alleged having.
32 Recently, Tremblay-Lamer J. concluded as follows:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition -- subjective and objective -- must be met.
Tabet-Zatla v. Canada (MCI), [1999] F.C.J. No. 1778, at para. 6 (T.D.). See also Vallipuram v. Canada (MCI), [2001] F.C.J. No. 1519 (T.D.); Fernando v. Canada (MCI), [2001] F.C.J. No. 1129 (T.D.).
33 In my opinion, the Board was right to conclude that the applicant did not have a subjective fear of persecution and that accordingly, his claim should fail. To reach that conclusion, the Board relied on the evidence it had before it.
34 The applicant also argued that the Board erred in its interpretation of his travels to the United States. I disagree.
35 The fact that the applicant returned to El Salvador because of his desire to live with his family cannot be held against him. However, the Board considered that this was inconsistent with a fear of persecution. A person may however fear for his or her life but return nonetheless to his or her country for pressing reasons, such as having to take care of a mother who is ill (Ali v. Canada (MCI), [1996] F.C.J. No. 558 (T.D.)). In this case, I do not see any ground for intervention by this Court.
36 Having regard to those facts, I am of the opinion that the Board's findings with respect to the applicant's subjective fear were reasonable.
Errors of Law and Fact
37 The applicant submitted that the Board rejected the testimony of Mr. Majano without any valid reason. I do not share that view. Issues as to the weight of the evidence are within the jurisdiction of the Board as the trier of fact in respect of Convention refugee claims (see, inter alia, Ithibu v. Canada (MCI), [2001] F.C.J. No. 499, at para. 77 (T.D.)). The Board in this case clearly indicated why it did not assign much weight to Mr. Majano's testimony. That decision was not unreasonable.
38 The applicant also submitted that the Board ignored the evidence concerning the situation in El Salvador and that its decision was not based on the evidence before it. He claimed that the Board doubted his credibility arbitrarily, without giving valid reasons. I disagree.
39 The applicant's submissions concern the importance that should be given to the evidence adduced. Again, in this case, in the absence of a patently unreasonable error made by the Board, this court will not intervene.
40 The Board is presumed to have weighed and considered all the evidence that was before it, unless the contrary is shown (Florea v. Canada (MCI), [1993] F.C.J. No. 598 (F.C.A.)). Also, the Board is not required to refer to each piece of evidence that was before it as long as its decision was based on the totality of the evidence (Hassan v. Canada (MEI), [1992] F.C.J. No. 946 (F.C.A.)).
41 In this case, the decision of the Board was carefully reasoned. It explained why it did not believe that the applicant had a subjective fear of persecution.
42 With respect to the implausibilities cited by the Board, they were supported by the evidence and were not, in my opinion, unreasonable.
43 The applicant also did not show that the Board ignored evidence concerning the situation in El Salvador. In reviewing the reasons of the Board, it seems to me that it was aware of that evidence. The weight to be assigned to that evidence was within its discretion (Hassan, supra).
44 For these reasons, the applicant did not satisfy me that the Board failed to consider certain evidence or that it made erroneous findings of fact.
Duty to Act Fairly
45 The Supreme Court has quite recently held that the duty to act fairly has two components: the right to be heard and the right to an impartial hearing (Therrien (Re), [2001] S.C.J. No. 36 cited in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091, at para. 6 (F.C.A.).
46 A full and proper hearing and, in particular, the right to be heard, means that the claimant has the opportunity to present his or her case and can put forward the underlying reasons for his or her claim. In Kouama v. Canada (MCI), [1998] F.C.J. No. 1852, at para. 15 (T.D..), Teitelbaum J. stated:
In my view, the right to be heard requires a panel, inter alia, to give a person an opportunity to answer the questions put to him or her and to make submissions on every fact or factor likely to affect the decision. In the case at bar, the applicant claims that there was an injustice due to the fact that he was not permitted to be heard, but he did not offer any evidence showing that there was a denial of justice. Nor did he establish that he was prevented from filing any additional evidence. In my view, any injustice to which the applicant refers is the product of his assessment and personal interpretation of the way the hearing was conducted . . .
See also Siba v. Canada (MCI), [2001] F.C.J. No. 1890 (T.D.)
47 In this case, the applicant submitted that he did not have such an opportunity. Furthermore, he contended that the Board showed bias.
48 The test to establish that the Board did not act impartially is the following: what would an informed person, viewing the matter realistically and practically, conclude? The grounds for apprehension must be substantial, particularly when an administrative tribunal is concerned. ([1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369).
49 After carefully reading the transcript pages referred to by counsel for the applicant in which the Board allegedly violated his client's right to be heard, I must say that at no point did I find that allegation sustained. The applicant was in fact able to present his evidence in its entirety, and I did not find any aggressive or unwarranted remarks in the transcript that could justify an intervention.
50 With respect to the allegation of bias, I do not think that a well-informed person viewing the matter realistically and practically would reach the conclusion that there was bias.
51 The applicant argued, inter alia, that Ms. Lavoie, the Board member, showed bias in favour of the Minister's representative, that she joked with him, and that she acted unprofessionnally. The applicant also argued that Ms. Lavoie was not courteous toward the applicant's witness.
52 I do not share that opinion. At the very most, the Board actively participated in the examination in order to clarify certain points.
53 For the reasons mentioned earlier, I am of the opinion that the Board did not show bias. It did not prevent the applicant from being heard either. I agree with the comments of Blais J. in Ithibu v. Canada (MCI), [2001] F.C.J. No. 499, at para. 54 (T.D.):
The Board cannot be faulted for these few interruptions and the applicant's allegations that he was constantly interrupted are an exaggeration of what really occurred at the hearing. In the case at bar, it cannot even be said that the Board frequently interrupted the applicant . . .
The same can be said of this case.
The Charter
54 This Court has repeatedly held that raising a Charter issue in judicial review is premature.Very recently, in Ithibu, supra, Blais J. reiterated this at paras. 102-104:
The applicant alleges that his deportation will violate his rights under sections 7 and 12 of the Charter and article 3 of the Convention against Torture.
The present case is an application for judicial review of a Board's decision that the applicant is not a Convention refugee. The case does not deal with the applicant's deportation and I will refer the applicant to the decision of Teitelbaum J. in Cruz v. Canada (M.C.I.), [1999] F.C.J. No. 1266 (T.D.), where it was stated:
With respect to the Charter issues raised, the decisions of this Court clearly state that the refusal of a refugee claim does not give rise to the application of sections 7 and 12 of the Charter, because it is not a removal. . . . Therefore, it is premature for the applicant to raise Charter issues in his application for judicial review.
I believe that an application for judicial review of a Board's decision is not the appropriate forum to raise this issue since there is no deportation order before us.
See also Kabengele v. Canada (MCI), [2000] F.C.J. No. 1866 (T.D.).
55 I am therefore of the opinion that the applicant's argument with respect to the Charter cannot succeed.
56 In Ithibu, supra, Blais J. concludes at paragraph 110:
The applicant suggested three serious questions: 1. A hearing model has been developed in Montreal where the refugee applicant is told that it is not necessary to tell their story in the Personnel Information Form, where the refugee hearing officer is asked to question first, reversing the normal order of the proof and where the right to a complete hearing has been gutted with all emphasis being placed on the cross-examination of the refugee applicant. This hearing model has resulted in systematic injustices. Does the use of the finding of the new hearing model in refugee hearings in Montreal violate the judicial guarantees of article 7 and article 12 of the Canadian Charter of Rights and Freedoms and the right to equality under article 15 of the Charter? . . .
Blais J. did not believe that that issue was of general importance. Counsel for the applicant asked me to certify that very question in this case. Counsel for the respondent objected. I have no intention of certifying it. No question will therefore be certified.
[57] For these reasons, the application for judicial review is dismissed.
"Michel Beaudry"
Judge
OTTAWA, ONTARIO
March 20, 2002
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2815-01
STYLE OF CAUSE: CARLOS ALBERTO SERVELLON RODRIGUES ET AL.
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 12, 2002
REASONS FOR ORDER OF BEAUDRY J.
DATED: MARCH 20, 2002
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
GUY M. LAMB FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
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