Toronto, Ontario, August 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JOSE REMBERTO DIAZ GONZALEZ and
ROSA MYRNA GUILLEN DE DIAZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 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 September 8, 2004, in which Jose Remberto Diaz Gonzalez and Rosa Myrna Guillen De Diaz (the applicants) were determined not to be Convention refugees nor persons in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicants are citizens of El Salvador. The male applicant claims that since 1995, he has been an active supporter of the Frente Farabundo Marti para la Liberacion National (FMLN). On June 1, 2003, after leaving a meeting of the FMLN, the male applicant was confronted by 15 members of the Alianza Republica Natiolista (ARENA) party. A fight ensued, during which one of the ARENA supporters told the male applicant that he would "pay the consequences and suffer".
[3] On June 9, 2003, a neighbour of the applicants claimed to have seen three masked men enter their house and steal their television, stereo system and clothing. Later that night, the applicants received a phone call threatening them not to report the theft to the authorities.
[4] Over the next few weeks, the applicants claim to have received numerous phone calls, threatening them with death if they did not leave the city. On June 20, 2003 the male applicant went to the police for protection, but they did nothing for him.
[5] On June 24, 2003, the female applicant alleges to have been beaten and raped by three masked men who wanted to know the whereabouts of her husband. The next day, the applicants moved to Ayutuxtepeque to escape the alleged persecution. On June 27, 2003, the applicants received a phone call from the "death squad" threatening them with death if they did not leave the area. On July 24, 2003, the applicants left El Salvador and claimed protection in Canada on July 31, 2003.
DECISION OF THE BOARD
[6] The Board found that the male applicant exaggerated his role in the FMLN party in order to enhance his story. Furthermore, the Board found that the persecutors changed from being the ARENA party, to being members of the death squad, with no explanation as to how that could be.
[7] The male applicant stated that the rape of his wife was probably revenge because they could not find him. The board was of the opinion that revenge has no nexus with a Convention ground.
[8] Furthermore, the only link between the rapes and the fight on June 1, 2003, is the female applicant's testimony that the men who raped her did so while stating that this was all due to the incident on June 1, 2003. However, this was not written in the applicant's narrative, and the Board therefore dismissed it as non-credible.
[9] The Board was of the opinion that the rape and beating of the wife was not related to the incident on June 1, 2003. Furthermore, the female applicant did not discharge the onus of showing clear and convincing proof of the state's inability or unwillingness to protect her. Overall, the male applicant was deemed not to be credible, as he answered "I don't know" to numerous questions concerning the events leading to his alleged persecution.
ISSUES
[10] Did the Board commit a patently unreasonable error in finding the applicants to be non-credible and in concluding that they failed to discharge the onus of showing clear and convincing proof of the state's inability or unwillingness to protect them?
ANALYSIS
[11] It has been determined numerous times over, that it is up to the Board to determine issues of credibility and weight. (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.); He v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1107 (F.C.A)
[12] It was not patently unreasonable for the Board to understand from the male applicant's Personal Information Form (PIF) that he would plan activities and design political propaganda, would make or plan posters, leaflets and flyers and distribute them to attendees so that they in turn, could circulate the materials. Therefore, it was entirely reasonable for the Board to question the credibility of the male applicant, when, after having been asked numerous times, he responded that he only distributed the propaganda and was not involved in the writing, designing or planning of the material.
[13] I also do not accept the male applicant's argument that the omissions in his PIF were irrelevant. The applicant fears persecution for his political opinion based on his membership in the FMLN party. It is therefore of primordial importance for him to demonstrate that he was indeed a member of that party and to describe what his duties were towards that position. The fact that through his activities with the FMLN party, he helped poor peasants and children by bringing them food, and that he also organized meetings where he could cook for them and distribute money was therefore very important but was not mentioned in his PIF. It was therefore reasonable for the Board to draw a negative inference from that important omission.
In essence, the Board's decision turns on its finding that the applicants were not credible with respect to their alleged fear of persecution in Israel. Upon reviewing the evidence, it is my opinion that this was a finding which was reasonable and supported by the evidence. Contrary to the assertions of the applicants, the Board provided numerous reasons for not finding their testimony credible. For instance, the Tribunal noted the failure of the principal applicant to mention in the narrative portion of his PIF (relied on by all of the applicants) any of the events which the applicants later described in oral testimony, such as problems with employment, accommodation, harassment of the minor claimants at school, and their objection to compulsory military service. Where a refugee claimant fails to mention important facts in his or her PIF, this may legitimately be considered by the Board to be an omission that goes to lack of credibility. In my view, the Tribunal was entitled to disbelieve the applicants' contention that they did not mention these events as they thought their claim was going to be assessed against Russia. (Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 at paragraph 4) [my emphasis]
[14] Furthermore, the applicants claim to be persecuted by "state authorities". In his oral testimony, the male applicant first states that his persecutor is the ARENA party. However, he later states that he fears persecution from the death squad. It was entirely reasonable for the Board to raise the question of determining which of the two groups the applicants feared, or whether they were the same group. The male applicant then stated that these two groups were actually one and the same, but could give no evidence to support his claim.
[15] The onus was on the applicant to demonstrate that these two groups were in fact the same one. It is not up to the Board to simply assume that such is the case, as the claim must also be objectively well-founded. As was stated at paragraph 133 of Chan v. Canada(Minister of Employment and Immigration), [1995] 3 S.C.R. 593:
Nevertheless, even if the appellant is given the benefit of the doubt on the question of a subjective fear, the existence of a subjective fear of persecutory treatment is not sufficient to meet the statutory definition of a Convention refugee. It is the responsibility of the claimant at a refugee determination hearing to lay an evidentiary foundation upon which the Board can conclude not only that the fear existed in the mind of the claimant but also that it was objectively well-founded. [my emphasis]
[16] Having read the documentary evidence which the applicant claims establishes the required link between the two parties, I do not believe that the Board made a patently unreasonable error in not finding a clear connection:
Evidence also emerged that US military training had been provided, in at least one instance, for a civilian group in El Salvador operating as a 'death squad'.
(See exhibit C of the affidavit of Deyanira Benavides at page 85 of the applicants' record.)
[17] In addition, it was not unreasonable for the Board to have found it implausible that the male applicant, who was an active member of a registered party who had won by a majority in the 2000 election, would be continually targeted in the manner alleged. As was stated at paragraph 16 of Tshimanga v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1512:
It is perfectly acceptable for a tribunal to find an applicant lacking in credibility according to implausibilities in the applicant's testimony. For example, Aguebor v. Canada (MEI) (1993), 160 N.R. 315 (F.C.A.), Kioreskou v. Canada (M.C.I.) IMM-1860-94, March 22, 1995 (F.C.T.D.), [1995] F.C.J. No. 457.
[18] Furthermore, the link between the male applicant's claim and that of his wife is the oral testimony of the female applicant stating that the beating and rape which took place on June 24, 2003, was due to her husband's interference with them on June 1, 2003. However, this key piece of information was not included in her PIF. Furthermore, when confronted with this omission, the female applicant testified that the interpreter made a mistake, or that she had simply forgotten to include it.
[19] Although I realize that her PIF was written only two months after the date of her attack, by that time, she had arrived in Canada and was not in any danger of further attacks. She had ample time to prepare her PIF and ensure that it included all of the important details of the attacks. Therefore, I do not find it unreasonable for the Board to have drawn a negative inference from this omission.
[20] Finally, I wish to address the applicants' claim that the Board erred in concluding that the female applicant failed to discharge the onus of showing a clear and convincing proof of the state's inability to protect her. When asked why the female applicant had not reported the incident to the police, she responded:
Q: Ma'am, did you complain to the police about the fact that your house had been robbed and that you had been raped by three individuals?
A: No, we didn't.
Q: What?
A: We didn't make any denunciation anymore because we complained to the police the first time when they broke into the house on the 1st of June, but they said they were going to investigate and they didn't do anything.
Q: But you did not complain, ma'am, to the police regarding the fact that you had been violently treated by these three hooded men, is that what you're saying?
A: No, because... no, well, because they don't do anything. And also, well, these people threaten you if you denounce them they are going to kill you. So, well, out of fear people do not make denunciations. People just keep quiet. Even if people are witness of some event, neighbours or passerbys they don't say anything because they are too afraid.
(Page 62 of the transcript of the hearing dated May 17, 2004)
[21] Based on that answer, I do not find it unreasonable for the Board to have determined that the applicant had not discharged the onus of showing a clear and convincing proof of the State's inability or unwillingness to protect her.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50) [my emphasis]
[22] Although the female applicant puts forth the claim that she spoke to the police after the robbery of her home and that the police promised to investigate but did nothing, the jurisprudence is clear that a claimant must do more than simply show she went to see some members of the police force and that her efforts were unsuccessful. As a democratic nation which has had fair and free elections for the past 20 years, I find that the remarks made by the Federal Court of Appeal in Kadenko v. Canada(Solicitor General), 143 D.L.R. (4th) 532 find application in the case at hand:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her (See Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725, 103 D.L.R. (4th) 1.)
[23] Overall, it must not be forgotten that an evaluation of credibility based on evidentiary inconsistencies, omissions, evasions and lack of detail is at the heartland of the Board's discretion as the trier of fact. As was stated at paragraph 85 of Canadian Union of Public Employees, Local 301 v. Montreal(City), [1997] 1 S.C.R. 793:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New BrunswickSchool District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. (...) [my emphasis]
[24] It is up to the Board to evaluate the evidence provided to it as a whole and to determine what weight to attribute to the credibility of the applicants' testimony. In a case such as this, the standard of review is that of patent unreasonableness, as the arguments presented rely solely on contradicting the findings of fact made by the Board. As is stated at paragraph 5 of Conkova v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 300:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. Canada(Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, (1996) 144 D.L.R. (4th) 1. In this case, the conclusion to which the CRDD arrived is not wrong on its face, even though others might come to a different conclusion. There is no reason for this Court to intervene.
[25] Therefore, for all of the above stated reasons, I am of the opinion that the Board did not act in a patently unreasonable manner in finding that the applicants lacked in credibility and that they did not make an adequate effort to acquire state protection.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review be dismissed.
2. No question for certification.
"Pierre Blais"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8456-04
STYLE OF CAUSE: JOSE REMBERTO DIAZ GONZALEZ and
ROSA MYRNA GUILLEN DE DIAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 29, 2005
APPEARANCES:
Michael A. Foster FOR THE APPLICANTS
Brad Gotkin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Community Legal Services of Niagara South Inc.
Ridgeway, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT