Date: 20071002
Docket: IMM-4693-06
Citation: 2007 FC 994
Ottawa, Ontario, October 2,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MANUEL MARIA CODAS MARTIN
MARCOS MANUEL CODAS ECHAVARRI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated August 3, 2006. The Board concluded that the applicant is excluded from
refugee protection pursuant to Article 1F(b) of the Refugee Convention. The
Board found that the applicant was not credible and as such that the Minister
met its burden and established the exclusion.
ISSUES
[2]
The
applicant raises four issues to be considered by the Court:
a) Did the Board
err in its assessment of credibility?
b) Did the Board err in its
assessment of the principal Applicant’s lack of subjective fear?
c) Did the Board
err it its plausibility assessment?
d) Did the Board
err in its assessment of corroborating evidence?
[3]
I
would simply restate the question as follows: did the Board err by making
adverse findings of credibility in a perverse and capricious manner, on
irrelevant considerations, or without regard to the totality of the evidence
before it?
BACKGROUND
[4]
The
principal applicant, Manuel Maria Codas Martin, is a citizen of Paraguay. The second
applicant is his son, Marcos Manuel Codas Echavarri, also a citizen of Paraguay, who bases
his claim on the same set of facts as his father. The principal applicant was
a practicing physician and the mayor of Coronel Bogado, a Paraguayan town,
between December 2001 and January 2003. He was elected as a member of the
dominant Colorado party, but
was in fact a member of a minority faction and ran for mayor as an
independent. He refused to ally himself with the official faction of the Colorado party,
because certain key members had connections with and received campaign funding
from drug traffickers in the region.
[5]
As
mayor, the applicant alleges that he adopted measures to impede the traffic of
narcotics; he had key roads rendered unusable and increased surveillance of
vehicles operating without licence plates. Around August of 2002, he began
receiving death threats from people who wished him to reverse these measures.
[6]
According
to the applicants, the second applicant was kidnapped on December 15th,
2002. The kidnappers had the second applicant telephone his father. They
demanded cheques in the amount of $100 000 U.S., and ordered
that the principal applicant not tell anyone of the kidnapping. They further
ordered that the principal applicant publicly manifest his support for the official
party and reopen roads used by the traffickers within 48 hours. They threatened
to assassinate both the principal applicant and his son, if he failed to comply
with their demands.
[7]
The
principal applicant signed the cheques, and the second applicant was
returned to his father the following morning. He had dried blood on his face
and clothes, bruises and an open cut. The principal applicant took his son to
the doctor to be examined for internal injuries.
[8]
On
December 20, 2002, an order was rendered by the civil court
garnishing 25 percent of the applicant’s mayoral wages on the ground that the
cheques dated December 15, 2002 had insufficient funds. A lien was put on the
applicant’s property, and his bank accounts were closed.
[9]
On
December 25, 2002, as he was returning from the town of Encarnacion, a passing
vehicle fired three shots at the principal applicant, and hit his car.
[10]
Finally,
on January 15, 2003 at 10 p.m., the applicant received an emergency call to see
a patient. As he parked in front of the house supposedly belonging to the
patient, a masked person approached his vehicle, pointed a gun at his head, and
threatened him with death if he did not leave the country. Following this
incident, the principal applicant and his son requested a visa to Canada on January
22, 2003, and travelled to Canada via Argentina between February 1 and
3, 2003.
DECISION UNDER REVIEW
[11]
The
Board rendered its decision following hearings on three separate dates. The Minister of
Citizenship and Immigration intervened for an exclusion under Article 1F(b)
of the Refugee Convention.
[12]
The
Board concluded that the Minister’s representative established serious reasons
for considering that the principal applicant was excluded from the Convention
refugee definition and from being a person in need of protection. The Board’s
determination essentially turned on whether the principal applicant left
Paraguay due to fear
of persecution or whether he left to avoid criminal proceedings.
[13]
The
Board preferred the Minister’s submission and accepted that the following legal
documents establish that the applicant was convicted of fraud, rather than
being a victim of persecution, pursuant to sections 96 or 97 of the Act:
a) A demand of
payment and judicial seizure order in the amount of approximately $30,000 U.S.,
dated December 27, 2002, payable to the court on behalf of one Patricio Jose
Acosto Rivero, stating that a failure to comply would result in a lien on the
applicant’s property;
b) A Public
Ministry Judicial Power Order and Arrest Warrant dated February 4, 2003, ordering
the detention of the applicant. The document states that the principal applicant
issued cheques for approximately $60,000 U.S. to Patricio Acosto in October of
2002, and that following an investigation into the matter, the principal applicant’s
bank accounts were closed on December 10 and 11, 2002;
c) Two
Paraguayan newspaper articles dated March 11 and 23, 2003 respectively. The
first states that the principal applicant fled to Canada in order to
evade his debts and the warrant issued for his arrest. The second refers to a
public auction of the principal applicant’s goods, seized by Patricio Acosta;
d) A
preventative lien order demanding payment of approximately $8,000 U.S., dated March
19, 2003;
e) A Certificate
of Notification issued by the judiciary of the Republic of Paraguay stating
that the principal applicant is in contempt of the law;
f)
Correspondence
from INTERPOL indicating that there is a national arrest warrant outstanding
against the principal applicant.
[14]
The
Board found there was a lack of sufficient credible evidence to accept the
applicants’ allegations for the following reasons:
a) The principal
applicant did not report the December 15 kidnapping to the police, despite the
fact that he made two written police reports regarding vandalism to his car,
and the attempt on his life on December 25, 2002. The Board did not accept the principal
applicant’s explanation that the kidnappers threatened to kill him if he
reported them to the police, because their demand of silence was the only one
with which he complied. The Board concluded it was more plausible that the
applicant would have reported the kidnappers if he had a genuine fear. Further,
it was found to be implausible that the principal applicant would report the
incident of December 25, but not the kidnapping.
b) The Board
drew a negative inference from the fact that the applicant did not specifically
mention in his Personal Information Form (PIF) the kidnappers’ demand that he
not go to the police.
c) The Board did
not accept that the principal applicant was threatened in January; the Board
found it implausible that the applicant would decide to leave the country on
the basis of a threat which was deemed to be no more serious that the attack of
December 25, and therefore concluded that the incident did not occur.
d) The Board
found that the principal applicant’s behaviour was not what one would expect
from a person who feared being killed; despite the fact that he claimed to be
in hiding from December 15 until the time he left, the principal applicant
continued to practice medicine and worked actively as mayor.
e) The Board found
it implausible that the principal applicant did not go to the banks from which
the cheques were drawn, and advise them of the problem with the accounts
between the time he issued the cheques to the kidnappers on December 16, 2002
and December 20, 2002 when the judicial action was allegedly commenced. This
inference supported the Board’s conclusion that the kidnapping and signing of
cheques under duress did not happen.
f)
The
Board found it implausible that a garnishment order would be issued in the
short time span between the kidnapping and December 20. Rather, the Board
concluded that the document more likely resulted from an ongoing proceeding,
brought prior to the kidnapping.
g) The Board
found it was not plausible that the principal applicant would seek the
assistance of a lawyer, and yet fail to divulge the kidnapping. He simply told
the lawyer that he was not able to comply with large sums payable by cheque,
and as such his accounts had been closed.
h) The Board
attributed minimal weight to a letter provided by the principal applicant’s
lawyer. Because the Board did not accept that the accounts were closed due to
the kidnapping, it was concluded that the information provided by the principal
applicant was not credible, and as such the letter was not based on credible
information.
i)
The
Board attributed no weight to a doctor’s note dated December 16, 2002, stating
that the second applicant sought medical treatment after the kidnapping. Because
the same physician sent a letter of support on behalf of the refugee claim, the
Board doubted whether the physician was an independent and objective source.
j)
The
Board attributed no weight to letters sent by the applicants’ friends, finding
them to be self serving.
k) The Board
gave no weight to the evidence of procedural irregularities in violation of
Paraguayan law, notably the fact that the arrest warrant appeared to have been
issued by a prosecutor and not a judge.
l)
Finally
the Board gave no weight to the psychological report stating that the second
applicant suffers from post traumatic stress disorder as a result of the
kidnapping. Because it disbelieved the occurrence of the kidnapping, it
did not accept the diagnosis of the psychologist.
[15]
The
Board accepted the documentation disclosed by the Minister as valid and
trustworthy, and therefore concluded that there were serious reasons to believe
that the principal applicant was guilty of serious non-political crimes
outside of Canada. The Board
stated that because serious criminality can include economic crimes, and
because fraud over $5,000 is punishable in Canada by a maximum
of ten years, pursuant to section 380 of the Criminal Code of Canada,
R.S., 1985, c. C-46, the applicant was excluded.
RELEVANT LEGISLATION
Immigration and Refugee
Protection Act, S.C. 2001, c. 27
|
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.
Person
in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
Exclusion
— Refugee Convention
98. A person referred to in
section E or F of Article 1 of the Refugee Convention is not a Convention
refugee or a person in need of protection.
|
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.
Personne
à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
Exclusion
par application de la Convention sur les réfugiés
98. La personne visée aux
sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
|
Criminal
Code of Canada, R.S., 1985, c. C-46
|
Fraud
380. (1) Every one who, by
deceit, falsehood or other fraudulent means, whether or not it is a false
pretence within the meaning of this Act, defrauds the public or any person,
whether ascertained or not, of any property, money or valuable security or
any service,
(a)
is guilty of an indictable offence and liable to a term of imprisonment not
exceeding fourteen years, where the subject-matter of the offence is a
testamentary instrument or the value of the subject-matter of the offence
exceeds five thousand dollars; or
(b)
is guilty
(i)
of an indictable offence and is liable to imprisonment for a term not
exceeding two years, or
(ii)
of an offence punishable on summary conviction,
where
the value of the subject-matter of the offence does not exceed five thousand
dollars.
|
Fraude
380. (1) Quiconque, par
supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux
semblant au sens de la présente loi, frustre le public ou toute personne,
déterminée ou non, de quelque bien, service, argent ou valeur :
a)
est coupable d'un acte criminel et passible d'un emprisonnement maximal de
quatorze ans, si l'objet de l'infraction est un titre testamentaire ou si la
valeur de l'objet de l'infraction dépasse cinq mille dollars;
b)
est coupable :
(i)
soit d’un acte criminel et passible d’un emprisonnement maximal de deux ans,
(ii)
soit d’une infraction punissable sur déclaration de culpabilité par procédure
sommaire,
si
la valeur de l’objet de l’infraction ne dépasse pas cinq mille dollars.
|
United
Nations Convention Relating to the Status of Refugees, T.S. 1969
Article
1. Definition of the term "refugee"
F. The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for considering that.
(b) He has committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee;
ANALYSIS
Preliminary Issues
[16]
The
respondent raises two preliminary issues.
[17]
First,
the respondent raises the failure of the applicants to file their own
affidavits based on personal knowledge in support of their application for
leave; instead the affidavit filed was signed by counsel’s assistant, Sijani
Widyaratne. The respondent cites Justice McGillis’ order denying leave in Morales
et al v. Canada (Minister of Citizenship and Immigration), (September 3,
1998) IMM-1582-98 (F.C.T.D.) in support of the position that this failure is
fatal to the application, and it cannot be remedied by a third party affidavit.
In Sarmis v. Canada (Minister of
Citizenship and Immigration), 2004 FC 110, [2004] F.C.J. No. 109 (QL),
I ruled on the same question and found at para. 10:
It is well-established that the use of
third party affidavits is not fatal to an application for judicial review.
Though I do not applaud the use of third person affidavits, I am not prepared
to dismiss the application for judicial review on this basis. As the affidavit
of Rizni Faruk is based on personal knowledge of the applicants' testimony at
the hearing, it is sufficient to support this application.
[18]
In
the present case, I do not find that the use of a third party affidavit by the
applicants is fatal to the application.
[19]
Second,
the respondent raises the fact that only the transcript of the first sitting of
the applicants’ refugee claim is produced in the applicant’s record. The
respondent argues that this gives an incomplete picture of the
evidence. The applicant’s record, in accordance with Rule 10 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, contains all
required documents. The record of the Board is before the Court in
accordance with the order of Justice Blanchard, dated June 28, 2007, and as
such the Court has access to the evidence in its totality.
Standard of Review
[20]
Two
standards of review are applicable in the present case (Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2006 FC 139, [2006] F.C.J. No. 187 (QL)
at paras. 11-13).
[21]
It
is accepted that the standard of review in the assessment of credibility is
patent unreasonableness (Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), at para. 4). Plausibility
findings such as those impugned in the present decision relate to the
credibility of the evidence before the Board. In Aguebor, above, the
Court clearly stated that plausibility findings are owed the same deference as
other credibility-based conclusions; they may only be reviewed by the Court if
they are made in a perverse or capricious manner, based on irrelevant
considerations or without regard to the totality of the evidence. The Court
held in Valtchev
v. Canada (Minister of Citizenship
and Immigration),
2001 FCT 776, [2001] F.C.J. No. 1131 (QL), at para. 6 that these findings will
be patently unreasonable when they are “outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant”.
[22]
Whether
the Applicant is excluded under section F of the Convention is a mixed question
of fact and law and as such the standard of reasonableness simpliciter
should apply.
[23]
I
find no reviewable errors in the case at bar. The Board explained very well why
it did not believe the principal applicant. It could not cope with the fact
that the applicant did not go to the police to report the kidnapping of his son
while he communicated with them at least 15 times on other matters. The Board
could also not understand why the applicant did not talk to his bank while he
knew that he had insufficient funds for the $100,000 US cheques he had signed.
Also of concern was the fact that he did not reveal the whole story to his
lawyer. Finally, the Board gave cogent reasons to explain why it could not
accept the applicant's behaviour as one who feared being killed. It must be
noted that the principal applicant continued to work as a mayor and at his private
clinic on a daily basis for approximately six weeks after the alleged
kidnapping.
[24]
The
principal applicant’s son argues that the Board failed to assess his claim. I
do not agree. The son’s claim is wholly based on that of his father. Since the
principal applicant’s story was not believed, the findings pertain to both
claimants. It was also not patently unreasonable for the Board to give no
weight to the doctor’s note dated December 16, 2002 to corroborate the fact
that the second claimant sought medical treatment after the alleged kidnapping
because the Board did not believe that such kidnapping had occurred (Kabedi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 154, [2005]
F.C.J. No 224 (QL)).
[25]
Finally,
the Court considers that its intervention is not warranted towards the Board's
analysis on the exclusion under Article 1F(b) of the Convention. It was not
unreasonable for the Board to accept as valid and trustworthy the documentation
disclosed by the Minister.
[26]
At
the end of the hearing, counsel for the applicants referred the Court to the
notice of the decision they received where it showed that both applicants are
excluded under Article 1F(b) of the Convention. This is a clerical error
because a reading of the conclusion of the decision makes it clear that the
exclusion refers only to the principal applicant and not his son.
[27]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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