Docket: IMM-4512-11
Citation: 2012 FC 188
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, February 9, 2012
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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JOSE OTONIEL VARGAS MONTOYA
MARLYN EMELINA CASTILLO
SOLANO
CARLOS ENRIQUE VARGAS
CASTILLO
JOSEPH STEPHEN VARGAS
CASTILLO
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 (the Act), of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (the panel)
dated June 16, 2011. The panel determined that the applicants were neither
refugees nor persons in need of protection under sections 96 and 97 of the Act
and therefore rejected their refugee claim.
I.
Background
A. Facts
[2]
José
Otoniel Vargas Montoya (Mr. Montoya), his wife, Marlyn Emelina Castillo Solano
(Ms. Solano), and their sons, Carlos Enrique Vargas Castillo and Joseph Stephen
Vargas Castillo (together, the applicants), are citizens of Nicaragua. On December
16, 2009, they left Nicaragua to come to Canada, claiming
refugee status on December 21, 2009, by reason of their fear of the Sandanista
Front government and members of the Citizens’ Power Councils (CPC). The
applicants allege that they were persecuted by the government because they and
their family were politically involved in the Constitutional Liberal Party (PLC).
[3]
Ms.
Solano’s brothers were involved with the PLC, and Ms. Solano was an “aspiring
member” representing the party at the polling station in the 2006 elections.
She attended meetings and participated in marches. As a result, one of her sons
was threatened by young Sandanistas wanting him to join their party; the
applicants began to receive death threats and were attacked by unidentified
persons. On election day in 2006, they even allege that people chanted slogans
in front of their house. The applicants contend that, from then on, they
received threatening telephone calls constantly until they left. The applicants
say that they filed a complaint with the police following these incidents but
that no action was taken.
[4]
In
addition, Mr. Montoya, a missionary for the Catholic church, was attacked by an
unknown assailant in 2008 while leaving a church and was hit in the face with
stones. After this first attack, he filed a complaint with the police and
received medical care. A second incident occurred in 2009, again as he left a
church. Mr. Montoya filed a complaint with the authorities and with the
Nicaraguan Centre for Human Rights (CENIDH).
[5]
The
panel heard their refugee claim based on this fear on June 7, 2011. Following
the hearing, the panel issued its negative decision on June 16, 2011.
B. Impugned
decision
[6]
In
its decision, the panel stated that, after reviewing the documentary and
testimonial evidence, the applicants were not considered credible and the
documents filed had no probative value.
[7]
Thus,
because the applicants failed to prove essential elements in support of their
refugee claim and their fear of persecution, the panel rejected their claim.
II.
Issue
[8]
The
only real issue this case raises is the following:
Did the panel err in its assessment of the
evidence and the applicants’ credibility by basing its conclusions on erroneous
findings of fact that it made in a capricious manner without regard to all the
evidence?
III.
Applicable
statutory provisions
[9]
The
relevant sections of the Immigration and Refugee Protection Act are as
follows:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention
– le réfugié – la personne 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:
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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IV.
Standard
of review
[10]
The
appropriate standard of review in this case, which involves a pure question of
the assessment of the evidence, is reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir];
Aguebor v Canada (Minister of Employment and Immigration) (FCA), (1993) FCJ No. 732, 42 ACWS (3d) 886 [Aguebor]). The
Court must therefore show deference (Dunsmuir, above, at
paragraph 49). Consequently, it is for the Court to determine whether the
panel’s findings are justified, transparent and intelligible and fall within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above, at paragraph 47). Accordingly,
it is not appropriate for the Court to reassess the evidence that was before
the panel.
V.
Analysis
[11]
Before
the Court, counsel for the respondent argued that the panel’s decision, viewed
in its entirety, is reasonable because it rejected the applicants’ refugee
claim based on their lack of credibility with respect to the essential elements
underlying their application. In the respondent’s view, the panel clearly
explained why it did not consider the applicants credible, in particular
because of the lack of corroborating documents; the female applicant’s lack of
knowledge about the PLC; the inconsistencies in the applicants’ testimony and
prior statements, and the female applicant’s lack of spontaneity in her
testimony.
[12]
After
reviewing the relevant evidence and hearing the representations of the parties,
the Court is not satisfied that the panel’s decision is reasonable.
[13]
Although
assessing the applicants’ credibility is a matter for the panel, and it is
presumed to have reviewed all the evidence, the Court is of the view that the
panel unreasonably disregarded two documents that are at the heart of the
dispute. The panel should have taken the two documents into consideration and
integrated them into the analysis of its decision for the following reasons.
[14]
The
first document is Exhibit A-4 entitled “2010 Report on International Religious
Freedom - Nicaragua”, which covers the period from July 1, 2009, to June 30,
2010.
[15]
The
evidence in the record indicates that this report was sent to be filed in the
record on June 6, 2011 (Applicants’ Record, page 161), and that the presiding
panel member was aware of the document at the hearing on June 7 (Applicants’
Record, page 356). The report states that religious freedom is generally
respected in Nicaragua but that
there is also intolerance:
Restrictions on Religious Freedom
The government generally respected
religious freedom in practice. There was no change in the status of respect for
religious freedom by the government during the reporting period. The government
showed intolerance toward those who commented on sociopolitical matters,
including religious groups.
On April 23, 2010, the Catholic Episcopal
Conference denounced the use of religious institutions for political purposes
and demanded respect for the rule of law. Religious leaders also felt
constrained when expressing negative commentary on government structures. ...
There were no reports of any official
action limiting the physical practice of religious worship and church
attendance during the reporting period. However, FSLN activity, sometimes
expressed in official government activities or carried out by government
workers, disrupted church functions and the freedom to worship. CPCs organized
protests to disrupt religious activities and harassed religious leaders when
they encroached upon the government’s political agenda. Catholic authorities
reported that the CPCs continued a systematic strategy of harassment whenever
clergy publicly criticized the government. ... (Applicants’ Record, pages
164-165)
(Emphasis added)
[16]
At
the panel hearing, the presiding member summarized that the applicant was a
missionary and that his preaching was perceived as a political activity, that
is, to urge people to not join the Sandanista Front. The applicant replied [translation] “precisely” (see Tribunal
Record, page 355). The panel should therefore have referred to this document,
which relates to the applicant’s claim on the basis of religion. The panel did
not do so. In addition, although the transcript shows that the panel was aware of
document A-4, as stated above, document A-4 was not in the Tribunal Record. Not
only did the panel not refer to it in its decision, but the absence of document
A-4 in the Tribunal Record may cast doubt on whether the panel examined this
evidence.
[17]
The
second document is Exhibit P-8, a letter sent by the CENIDH. Although the panel
referred to it in its decision at paragraphs 38-39, it disregarded the letter
and assigned it no probative value. A review of this document signed November 30,
2009, indicates that an individual representing the interests of the government
and [translation] “who, it is
assumed, attacked Mr. Vargas Montoya”. The letter also states that police
officials [translation] “get
along well” with the current government. Furthermore, the letter is typed on
letterhead, signed and contains the seal of the organization for the defence of
human rights. Without making a finding that it is authentic, on its face, it is
clear that Exhibit P-8 has certain hallmarks of authenticity. In these circumstances,
although the panel could disregard this evidence, it had to explain why the
letter had no probative value. In this case, it was unreasonable for the panel
to rely solely on its findings to disregard – without further explanation – a document
that, on its face, seems authentic, comes from an organization for the defence
of human rights and corroborates the applicants’ claims in part. The panel’s
decision should have analyzed the authenticity of this evidence, which
contradicts some of its findings. With respect, the panel’s cursory analysis on
this issue and its finding that the CENIDH had not written the letter are
unfounded and unreasonable.
[18]
For
all these reasons, the Court’s intervention is warranted. There is no question
to certify.
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