Docket: IMM-6108-13
Citation:
2014 FC 814
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 21, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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JOSE ANTONIO MENENDEZ PARRA
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MARIA JOSE MADRIGAL DE MENENDEZ
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MARCO JAVIER MENENDEZ MADRIGAL
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DIEGO ENRIQUE MENENDEZ MADRIGAL
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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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JUDGMENT AND REASONS
I.
Preliminary remarks
[1]
The tribunal’s decision lacks an inherent logic and
is therefore unreasonable. The facts in the record were taken entirely out of
context; the chronology and the establishment of the facts were completely
misunderstood.
II.
Introduction
[2]
This is an application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], for judicial review of a decision of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board dated
August 12, 2013, rejecting the applicants’ claim for protection as
refugees or persons in need of protection within the meaning of
sections 96 and 97 of the IRPA.
III.
Facts
[3]
The applicants are citizens of El Salvador who
made a claim for refugee protection. The principal applicant, Jose Parra,
worked for a telecommunications company named Telesis, which specialized in
radio communications. It is among the leading companies in the field in El
Salvador.
[4]
The principal applicant was responsible for
sales and for security systems at Telesis.
[5]
In June 2011, the principal applicant was
instrumental in winning a contact with the organized crime unit of El
Salvador’s national police (DECO) for Telesis. He is also alleged to have
concluded a radio communication contract with a company named Hotesa in
February 2012. The owner of that company, Jose Adan Salazar Umana
[Salazar], and his associates allegedly offered the principal applicant $250,000
for access to the national police’s systems. The principal applicant states
that he refused to co-operate with Salazar and that he was assaulted in
March 2012 for refusing to co-operate.
[6]
In April 2012, the principal applicant was
allegedly informed by a police inspector that one of his co-workers had been
murdered in connection with the contract with Hotesa. The principal applicant
and his family left town immediately.
[7]
On April 28, 2012,
two unidentified individuals allegedly tried to kidnap the principal applicant’s
son, who was saved when security guards intervened.
[8]
The applicants left El Salvador on April 30,
2012, entered Canada illegally on May 7, 2012, and claimed refugee
protection the day after their arrival.
IV.
Decision under review
[9]
The RPD found that the applicants were not
credible. The RPD noted, among other things, that it was implausible that
neither the principal applicant nor anybody else at Telesis knew that Salazar was
one of the most important and notorious criminals in El Salvador. The RPD did
not believe that a company renowned for the reliability and security of its
communication system would have taken on such a person as a client. Salazar had
been under investigation by the national police for many years. Since the RPD
did not believe there was a contract with Hotesa, it therefore found that it
was not credible that the principal applicant had been pressured by Salazar.
[10]
The RPD also noted that the principal applicant
contradicted himself regarding the time he spent at home after he was attacked
in March 2012. The applicant confirmed several times during the hearing
that he stayed at home for two weeks without going out. However, the evidence
in the record showed that the principal applicant had filed a complaint with
the police the day after his attack. The RPD found that the principal applicant’s
explanation for this contradiction was insufficient: “Yes,
maybe . . . when I was recuperating . . . She (my wife)
took me but I wasn’t there long” (at para 23). It noted that the
principal applicant was unable to spontaneously relate the sequence of events
after his hospital stay following his attack. This undermined his credibility
yet again.
[11]
Finally, the RPD noted that the applicant had
failed to mention his hospital stay in his Personal Information Form [PIF]. The
RPD drew a negative inference regarding the applicant’s credibility from this
significant omission, which combined with the other credibility findings led
the RPD to conclude that the applicants were not credible. The RPD therefore concluded
that the applicants had not established the required elements in support of
their refugee protection claim.
V.
Issue
[12]
Did the RPD err in concluding that the applicants
were not credible?
VI.
Relevant legislative provisions
[13]
Sections 96 and 97 of the IRPA apply in this
case:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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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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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Person in need of
protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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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;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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Person in need of
protection
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Personne à protéger
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(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.
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(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.
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VII.
Positions of the parties
[14]
The applicants allege that the RPD erred regarding
several facts in their story and did not consider evidence that corroborated
their story. They state that the RPD had no reason to refuse to believe that
Telesis had contracts with DECO and Hotesa.
[15]
The applicants also submit that the RPD erred in
trying to trick the principal applicant into contradicting himself regarding
the length of time he stayed at home after the attack in March 2012. The principal applicant submits that RPD could have simply
looked at the copy of the police complaint that had been presented in evidence
to confirm that he had left the house. The principal applicant did not try to
hide the fact that he had gone out.
[16]
Similarly, the principal applicant submits that
the RPD erred in faulting him for failing to mention his hospital stay in his
PIF. The principal applicant insists that he did not pay attention to his PIF
when he filled it out and that this is no reason to find him not to be
credible.
[17]
The respondent submits that it was reasonable
for the RPD to find that the significant implausibilities in the record
seriously undermined the principal applicant’s credibility. The respondent
states that it is completely implausible that the principal applicant would be
unaware of the affiliations of his co-contracting party, Salazar, whose
activities had received particularly extensive media coverage. The respondent
submits that it is just as implausible that the Salvadoran government would
have compromised its communications by allowing Telesis to enter into an
agreement with the head of one of the biggest cartels in the country.
[18]
Regarding the circumstances surrounding the
principal applicant’s alleged assault in March 2012, the respondent
submits that the RPD gave him several opportunities to explain his situation. It
was only when he was confronted with the fact that he went out to file a
complaint with the police the day after his attack that he stated that he only
meant that he had not left the house for social reasons, such as going out to
shop or to work. The respondent submits that these ex post facto explanations
are clearly designed to tailor his story. The RPD had more than enough reason
to conclude that there was a contradiction that undermined the credibility of
the principal applicant and his narrative.
[19]
Finally, the respondent submits that the RPD was
justified in finding that the principal applicant’s failure to mention his
hospital stay in his PIF further undermined his credibility. The PIF clearly
stated that he had to mention any medical care he received in connection with the
incidents on which he based his refugee protection claim.
VIII.
Issue
[20]
Is the RPD’s decision reasonable with regard to
the lack of credibility of the principal applicant, on whom the other
applicants based their case?
IX.
Analysis
[21]
As a result of certain findings of the RPD that
are clearly wrong, according to the narrative in the record, and that were made
with absolutely no understanding of the case as a whole, this Court has no
choice but to refer the case back to a differently constituted panel for
rehearing.
[22]
The RPD seems to have remained fixated on the
fact that the principal applicant left his house after he was attacked, and the
RPD failed in its duty to reasonably assess the factors as a whole.
[23]
Telesis, the company for which the principal
applicant worked, was not a [translation]
“security” company but a telecommunications company. Hotesa is a company
that owns hotels. Telesis had business ties with Hotesa, not with Salazar
directly.
[24]
The relationship between the principal applicant
and Salazar is not at all clear from the way it is described in the RPD’s
decision; moreover, the RPD’s findings are completely divorced from the context
of the narrative and the inherent logic of the case.
[25]
The principal applicant’s narrative was not
considered as a whole.
[26]
The RPD made errors regarding its understanding
of the contract between Telesis and Hotesa, the company with which the
principal applicant had problems.
[27]
An error was also made regarding the
understanding of Telesis and its activities. Specifically, Telesis had to verify
the [translation] “credit record”
of the company it did business with, not the company’s shareholders. In
addition, Hotesa had previously been a client of Telesis.
[28]
It was not only the relationship between the two
companies that was misunderstood; the RPD also completely misunderstood the
companies themselves, as entities, and their businesses.
[29]
In addition, the police complaint is proof in
and of itself and was misunderstood by the RPD.
[30]
It appears that the principal applicant was
entrapped by the questions put to him at the hearing.
[31]
The case itself seems to have been taken out of
the logical context based on the chronology and the establishment of the facts.
X.
Conclusion
[32]
For all the above reasons, the applicants’
application for judicial review is allowed, and the matter is referred back to
a differently constituted panel for reconsideration.
Obiter
[33]
As an example, there is no need to look further
than the recommendations of the Cliche Commission to see how people can be
blinded without understanding the situation in which they find themselves in the
context of their work. They often cannot see the forest for the trees, which obscure
from view the most obvious truths, truths which only become known after the
fact, rather than while the corrupt situation is unfolding.
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