Date:
20130819
Docket:
IMM-7839-12
Citation:
2013 FC 882
Ottawa, Ontario,
August 19, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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ARNOLDO ALFREDO
CAMPOS
DAISY MARGARITA
BATRE DE CAMPOS
CHRISTOPHER MAURICIO
CAMPOS BATRE (AKA CHRISTOPHER MAU CAMPOS BATRES)
ARNOLDO ALFREFO
CAMPOS BATRES
JENNIFER MARGARITA
CAMPOS BATRE
(AKA JENNIFER MARGAR
CAMPOS BATRES)
LEOPOLDO MAURICIO
CAMPOS RIVAS
(AKA LEOPOLDO MAURIC
CAMPOS RIVAS)
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Applicants
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and
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THE 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 of the decision of a member of the
Refugee Protection Division of the Immigration and Refugee Protection Board
[the Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the
Applicants’ claims for refugee protection, concluding that they were not
convention refugees or persons in need of protection under sections 96 and 97
of the Act.
I. Background
[2] The
Applicants consist of Arnoldo Alfredo Campos [the PA], his wife and three
children [the Family], and his brother [the PA’s Brother]. They are all
citizens of El Salvador. The PA’s Brother’s claim is distinct from the
collective claim of the PA and the PA’s Family.
[3] The
PA, who was employed as a lawyer in El Salvador, alleges he was approached by
Jesus Antonio Guzman Navarrete and his lawyer, Mr. Avelar, on April 27, 2010.
Mr. Guzman wished to retain the PA’s services to obtain new identity documents.
The PA claims in his Personal Information Form [PIF] narrative that he
practiced criminal, family, labour, civil, commercial, transit and tenancy law.
During the hearing, the PA produced a brochure for his practice which
advertises immigration services. However, he claims in an affidavit dated
August 31, 2012 that he does not practice immigration law, and the immigration
services advertised concerned a colleague who worked in his office.
[4] The
PA accepted a retainer of $1,000 from Mr. Guzman on April 27, 2010. The next
day he commenced work on Mr. Guzman’s file. Two days later, he received a
document from Mr. Avelar which indicated that Mr. Guzman had been detained on
criminal charges. In his PIF narrative, the PA states that this document made
him realize that Mr. Guzman was a member of a criminal gang.
[5] On
June 30, 2010, Mr. Avelar telephoned the PA on behalf of Mr. Guzman. During
that call, Mr. Avelar said that Mr. Guzman wished to cancel the retainer and
have his money returned. The PA refused, and asked for Mr. Guzman to attend his
office. Mr. Avelar hung up the phone. The same day, Mr. Avelar called back, and
threatened consequences if the money was not repaid. Mr. Avelar also warned the
PA that Mr. Guzman was a dangerous gang member. Under questioning by the Board,
the PA stated that he tried three times to call Mr. Avelar back and offer to
refund the money, but received no response. He does not describe these attempts
in his PIF narrative.
[6] The
PA alleges he received two threatening but unspecific text messages from an
unknown number on July 6, 2010. On July 19, 2010, he received ten text messages
directed specifically to him from a different unknown number, threatening to
kill his secretary if $3,000 was not deposited to a specified bank account. He
told no one about these text messages.
[7] On
July 20, 2010, the PA received five more text messages from the same number as
the day before. They re-iterated the request for money and threatened violence
against his family. Later that day he told his wife and older children about
the threats.
[7]
[8] On
July 22, 2010, the PA received an additional text message threatening his
family. It was at this point he decided to go to a special extortion unit of
the El Salvadorian national police. He alleges that the police tried to call
the number that had been sending him messages, but after the calls went
unanswered they refused to open an investigation.
[9] On
July 24, 2010, the PA returned and argued again for the police to open an
investigation. They did so, issuing him a false identity for protection. He did
not tell the police about the interactions with Mr. Guzman and Mr. Avelar, only
the text messages.
[10]
On
August 26, 2010, the PA was at his office when someone attempted to break in.
He escaped unharmed.
[11]
On
August 28, 2010, the PA and his Family left El Salvador and came to Canada, filing for refugee status on October 12, 2010.
[12]
The
PA’s Brother is a restaurateur, and on December 27, 2004, two men claiming to
belong to the Mara Salvatrucha gang attempted to extort him for $300.
[13]
On
January 3, 2005, two men held him at gunpoint at his restaurant, took $80, and
threatened to kill him if he did not pay the remainder. The next day, he went
to report his crime, but believed he saw the same two men outside the police
station and returned home.
[14]
On
January 6, 2005, he received a note which threatened him with death. He closed
his business and stayed with family in another city. Shortly after, he moved to
the United States, but returned within a month because he missed his family.
[15]
On
March 22, 2005, he returned to the United States, and stayed until February 2,
2011, when he applied for refugee status in Canada. He claims he did not apply
for asylum in the United States because he did not know how.
[16]
The
determinative issue for the Board in denying the Applicant’s claim was
credibility, or, in the alternative, state protection.
[17]
The
Board disbelieve the claims of the PA and the PA’s Brother in their entirety.
The Board’s credibility findings can be summarized as follows:
A. The
PA was an immigration lawyer, which would have made him aware of the documents
necessary to immigrate to Canada. This allegedly tainted the PA’s explanation
for many of his actions;
B. According
to his PIF narrative, the PA refused to return the money to Mr. Guzman on June
30, 2010. This is implausible, given that the PA was aware Mr. Guzman was a
dangerous gang member. This implausibility is compounded by the PA’s subsequent
testimony that he did attempt to return the money on several occasions and
omitted this fact from his PIF Narrative only because he was facing time
constraints when it was being written;
C. The
PA stated that he feared he would be murdered the next day if he made a police
report which included the names of Mr. Avelar and Mr. Guzman, and as a result,
he did not mention his interactions with them in his police report. This is
implausible, as the PA was protected by a code name, and during the course of
the investigation the text messages would presumably be traced to Mr. Guzman
and Mr. Avelar in avy event;
D. It is
implausible that a sophisticated criminal organization would leave numbers that
could be traced back to them;
E. It is
implausible that the police unit specializing in extortion would refuse to take
the PA’s complaint on July 22, 2010, given the quality of the police report
that was subsequently prepared;
F. The
PA claimed the police were not doing their job because they would not include
the phone numbers that sent the threatening text messages because they were
concerned about maintaining the PA’s anonymity. The police’s position is
reasonable and demonstrates they were doing their job, as such information
would have served to identify the PA;
G. It is
implausible that the PA did not make an additional police report after men tried
to break into his office on August 26, 2010, especially since he apparently had
witnesses to the break-in;
H. The
PA asked for a copy of his police report on July 22 and 24, 2010, before
receiving one on August 13, 2010. This eagerness shows that immigration to Canada was the PA’s primary motive;
I. The
psychologist’s report on the PA states he is “very fearful” of the police, yet
he reports to the police several times. As such, very little weight should be
ascribed to the psychologist’s report.
[18]
The
Board also disbelieved the PA’s Brother’s story of persecution in El Salvador. The reasons for this are based on the following:
A.
He
was evasive when he was asked if he had any problems with the Mara Salvatrucha
from February 14, 2005 and March 23, 2005;
B.
He
stated that he did not seek asylum in the United States because the system
confused him. This, given the fact that the PA is an immigration lawyer, that
the PA’s Brother admitted there were El Salvadorian community groups available
to assist him, and that he started working in the United States almost
immediately after arriving, makes his decision not to seek asylum in the United
States disbelievable.
II. Issues
[19]
The
issue raised in the present application are as follows:
A. Were
the Board’s credibility findings with regards to the PA reasonable?
B. Were
the Board’s credibility findings with regards to the PA’s Brother reasonable?
C. Were
the Board’s findings on state protection with regards to the PA reasonable?
D. Were
the Board’s findings on state protection with regards to the PA’s Brother
reasonable?
III. Standard of review
[20]
The
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9; Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12).
IV. Analysis
A. Were
the Board’s Credibility Findings with Regards to the PA Reasonable?
[21]
The
Applicants dispute the Board’s adverse credibility findings. The most pertinent
objections are as follows:
A. The
PA does not practice immigration law – the brochure from which the Board likely
drew that assumption was referring to another lawyer;
B. The
PA tried to return money to Mr. Guzman but was unsuccessful in doing so. The
PIF narrative does not reflect this fact because the PA was under time pressure
to complete it with his interpreter;
C. It is
reasonable that the PA did not include information about Mr. Guzman and Mr.
Alevar in his police report because of his ongoing fear of persecution. The PA
was not afforded protection beyond anonymity and the psychologist’s report and
the documentary evidence of violence in El Salvador contribute to the fact that
he had a well-founded fear of being killed;
D. The
Board’s assumption that the police would have taken his initial complaint
because the police report appeared to be professional is not rational. A
corrupt police unit is just as capable as a serious one of producing reports
that appear professional;
E. When
the PA requested his police report on July 22, 2013, he had not yet finalized
his decision to leave the country. As such, it is inappropriate to draw an
inference about his motive for seeking it;
F. The
Board asserts that the high level of general violence in El Salvador underlies the PA’s motive for leaving the country, not the recent threats he
faced. This is inappropriate, as the documentary evidence indicates that in the
past, violence in the country was much more prevalent;
G. The
Applicants also allege that the psychologist’s report was unreasonably
discounted, suggesting that the Board’s reasoning is false logic in that it
puts the PA in a “no-win” situation: the PA’s claim can’t succeed unless he
take steps to go to the police, but if he goes to the police he can’t be found
to be fearful of them.
[22]
There
are three key considerations which make the Board’s reasoning process with
respect to credibility concerning. First, the Board’s credibility finding is
rooted primarily in the notion that the story told by the Applicants is
implausible. Basing a credibility finding on implausibility alone requires a
high threshold of certainty. In Valtchev v Canada (Minister of Citizenship
and Immigration), 2001 FCT 776 at para 7, the Court states:
However, plausibility findings should be made only
in the clearest of cases, i.e., if the facts as presented 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.
A tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions
which appear implausible when judged from Canadian standards might be plausible
when considered from within the claimant's milieu.
Emphasis added
[23]
There
was no contradictory evidence identified by the Board, and the Board in its
decision acknowledged that the PA was, at times, a sincere witness in
testimony. Other than the omission of the fact that he attempted to call Mr.
Guzman back and return the money, this finding on credibility is based on the
implausibility of the PA’s story alone.
[24]
Second,
the Board failed to explicitly consider six affidavits submitted by the
Applicants which are broadly corroborative of the persecution faced by them.
While the Board stated that it considered the totality of the evidence and
there is no duty for the Board to mention every piece of evidence, failure to
address evidence that goes to the centrality of the issues in a case makes it
more likely for a court to rule that the Board did not give due regard to the
evidence (Cepeda Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425).
[25]
As
the plausibility of the PA’s version of events is corroborated by the affidavit
evidence provided by the PA, the central issue of credibility would be directly
impacted by this evidence and as such, the affidavit evidence ought to have
been addressed.
[25]
[26]
Third,
the cases cited by the Respondent are not particularly useful to the instant
application. Shahamati
v Canada (Minister of Employment and Immigration), [1994] FCJ No 415 and Alizadeh v Canada
(Minister of Employment and Immigration), [1993] FCJ No 11 are
one-paragraph decisions devoid of factual context which assert a general right
of the Board to use rationality and common sense in assessing implausibility. Nadaraja v Canada (Minister of Citizenship and Immigration), 2006 FC 1204 is
quite factually distinct: the credibility findings in that case included
inconsistencies and a finding by the Board that the applicant was an
untrustworthy witness. In addition, the case involved deference to the
implausibility finding by the Board owing largely to the Board’s expertise in
relation to human smuggling. No such expertise is at issue here. Aguebor v Canada (Minister of Employment and Immigration), [1993] 160 NR 315 (FCA) and Gonzalez v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 805 reiterate
that implausibility findings are within the jurisdiction of a board, which is
not disputed.
[27]
While
it is concerning that the PA did not tell the police about the interactions he
had with Mr. Guzman and Mr. Alevar or the August 26, 2010 break-in, his fear of
the police does mitigate this omission.
[28]
However,
on the whole, the Board’s credibility analysis is mostly speculative, and often
bases its logic in rhetorical questions. The approach taken by the Board to
deal with the Applicant’s credibility is similar to that in Valtchev,
and this factor, in combination with the Board’s failure to consider the
additional affidavits and the Respondent’s failure to provide a convincing
legal argument to support the Board’s findings, makes the Board’s reasoning
insufficiently intelligible and justifiable to meet the Dunsmuir standard of
reasonableness.
[29]
I
find the Board’s credibility findings unreasonable with respect to the PA.
B. Were the Board’s Credibility
Findings With Regards to the PA’s Brother Unreasonable?
[30]
The
Board’s finding on the credibility of the PA’s brother was reasonable. Simply
put, it is beyond what could reasonably be believed that someone who feared for
their safety would spend six years in a foreign country without applying for
asylum. While he stated that the American immigration system is confusing,
there is no evidence that it is more confusing than Canada’s, nor is it likely
that he could not have obtained assistance from community groups if he tried.
Based on this implausibility alone, the PA’s Brother’s story is not credible.
C. Were
the Board’s Findings on State Protection with Regards to the PA Reasonable?
[31]
The
Applicants allege that the Board failed to take into account that Mr. Guzman
was a dangerous gang leader of the Mara Salvatrucha in determining that the PA
did not take reasonable steps to obtain state protection. What is reasonable
depends on an applicant’s individualized context (Doreitha Codogan v Canada (Minister of Citizenship and Immigration), 2006 FC 739). By not taking into
account the fact that this individual was a dangerous gang member who had
previously been charged with a criminal offence, they did not appropriately
consider the reasonableness of his actions.
[32]
The
Applicants further submit that police efforts to protect him were non-existent
from the start, and given the immediate nature of the threats against him, the
Applicants were not obligated to seek the assistance of other government
agencies (Zepeda v Canada (Minister of Citizenship and Immigration),
2008 FC 491).
[33]
Moreover,
the Board’s failure to adjust its expectations of the PA’s burden to rebut the
presumption of state protection in relation to the degree of democracy and
corruption in El Salvador, its failure to take into account the personal
circumstances of the PA, its lack of acknowledgment of the behaviour of the
police and their failure to help the Claimant, and the unsupported finding that
the Applicant was being placed in a witness protection program, rendered the
Tribunal’s finding on state protection as unreasonable.
[34]
Given
the testimony of the PA and the Tribunal’s own documentary evidence, I find
that it was unreasonable of the Tribunal to find that state protection was
available for the PA.
D. Were the Board’s Findings on
state Protection with Regards to the PA’s Brother reasonable?
[35]
The
PA’s brother did not provide evidence to rebut the presumption of state
protection in his particular case. In particular, the failure to provide a
police report or any other corroborative evidence is telling. While he may have
been scared after seeing two men who be believed had previously mugged him,
there was no subsequent attempt to contact police, even during the period after
he returned from his initial one-month stay in the United States.
[36]
He
has not provided sufficient evidence to show that he sought state protection
nor has he provided sufficient evidence that shows he was not required to seek
state protection on the account of his fear.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application
of Arnoldo Alfredo Campos, his wife and their three children is allowed, and
the decision of the Immigration and Refugee Protection Board of Canada dated
June 20, 2012 is set aside, and their application for refugee protection is to
be re-determined by a differently constituted Board;
2. The
Applicant’s (Leopoldo Mauricio Campos Rivas) application is dismissed; and
3. No
question is to be certified.
"Michael D.
Manson"
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