Ottawa, Ontario, this 7th day of December, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 7, 2004, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks an order quashing the decision of the Board and remitting the matter for redetermination by a differently constituted panel.
Background
[3] Jose Arnoldo Landaverde(the "applicant") is a citizen of El Salvador who was born in Platanar, El Salvador. He alleged fear of persecution by organized criminals in El Salvador.
[4] The applicant alleged in the narrative portion of his Personal Information Form ("PIF"), dated May 12, 2004, that he was attacked and robbed by members of the gang Malasalvatrucha on a number of occasions. On December 12, 2002, he was threatened and beaten by gang members who wanted money from him. On February 10, 2003, a gang assaulted the applicant in his home, stole his belongings, and threatened to kill him if he said anything to the police. On February 14, 2003, he was attacked again. On November 8, 2003, the applicant, his common-law wife, their two daughters and a friend were on their way to a party when they were attacked by four men, who pushed the applicant into a wire fence. On June 5, 2001, two armed gang members threatened the applicant and stole his money. The applicant reported some of these attacks to the police, but the police refused to help him as they accused him of being an adversary of the government.
[5] The applicant filed an amended narrative on September 30, 2004 which amended some of the dates of the attacks. The date of the November 8, 2003 incident was changed to December 8, 2003. The date of the June 5, 2001 incident was changed to June 5, 2003.
[6] The applicant left El Salvador and travelled through Guatemala, Mexico, and the United States, before arriving in Canada on April 16, 2004.
[7] The applicant's claim for refugee protection was heard on October 22, 2004. The Board dismissed his claim in a decision dated December 7, 2004. This is the judicial review of that decision.
Reasons for the Board's Decision
[8] The Board began its reasons by stating:
These are the reasons for the decision of the Refugee Protection Division in the claim for protection made by Jose Arnoldo Landeverde (the claimant), who claims to have a well-founded fear of returning to Guatemala, specifically because of his fear of organized criminals.
Identity
The claimant is a 30-year old citizen of Guatemala. He was born on June 15, 1974 in Platanar, Guatemala.
[9] After summarizing the alleged attacks on the applicant by gangs, the Board stated at page 2 of the reasons:
It is because of these events that the claimant allegedly determined that he was unsafe in El Salvador.
The record shows that the claimant made a claim for refugee protection upon his arrival in Canada on April 16, 2004.
Determination
I find that the claimant is not a Convention refugee, as he does not have a well-founded fear of persecution for a Convention ground in Guatemala. I also find that the claimant is not a person in need of protection in that his removal to Guatemala would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment. In addition, there are no substantial grounds to believe that his removal to Guatemala will subject him personally to a danger of torture.
[10] As evident from the reasons above, the Board appeared to have confused El Salvador with Guatemala. The Board continued to refer to Guatemala (in place of El Salvador) throughout the remainder of its reasons for the decision.
[11] The Board went on to find the following inconsistencies between the applicant's PIF and his oral testimony at the hearing:
1. The original PIF narrative related that the applicant was attacked by four men on November 8, 2003, (this was changed to December 8, 2003 in the amendment to the narrative). At the hearing the applicant stated that the incident took place on December 8, 2003 and involved three men. He also stated that he was knocked unconscious and received a serious cut to his arm, but did not seek medical attention for his injuries.
2, The original PIF narrative related that the applicant was attacked by gang members on June 5, 2001 (this was changed to June 5, 2003 in the amendment to the narrative). At the hearing the applicant testified that this incident took place on January 5, 2003, and he could not identify his alleged attackers as being gang members.
[12] The Board determined that these discrepancies in the evidence seriously damaged the applicant's credibility. Further, the Board determined that the alleged serious injury arising from the December 2003 attack was an addition to the applicant's story on the day of the hearing that amounted to little more than an embellishment to an already inconsistent set of allegations.
[13] The Board found that the applicant's indirect route to Canada and delay in making a claim did not support a subjective fear of persecution. The applicant testified that he spent approximately one month in the United States before entering Canada. The applicant testified that he entered near Phoenix, Arizona, and travelled to Los Angeles, California, then to Buffalo, New York, before heading north to Canada. The applicant testified that he had friends in Los Angeles and he was aware that other Salvadorians had successfully made asylum claims in the United States. The Board cited and applied the decision of Ilie v. Canada (Minister of Citizenship and Immigration) (1994), 88 F.T.R. 220, [1994] F.C.J. No. 1758 (T.D.) (QL) which held that the claimant's failure to make a claim in countries which he visited that were signatories to the 1951 Convention and 1967 Protocol was inconsistent with having a well-founded fear of persecution.
[14] The Board concluded that given the contradictions in the applicant's allegations, and his failure to make a claim in the United States despite having knowledge that such things could be done and having friends in the United States, the applicant had not established a well-founded fear of persecution.
Issues
[15] The applicant raised the following issues in his memorandum:
1. Did the panel act without jurisdiction by rendering a decision in relation to the wrong country of reference?
2. Did the panel fail to discharge the obligation conferred upon it by its enabling legislation by failing to render a decision in relation to the correct country of reference?
3. Did the panel make patently unreasonable findings of fact going to the heart of the claim?
[16] I would restate the issues as follows:
1. Did the Board commit a reviewable error by referring to the incorrect country of nationality of the applicant?
2. Did the Board commit a reviewable error in finding that the applicant's story was not credible and the applicant lacked a subjective fear of persecution?
[17] If either of these questions is answered affirmatively, then the Board's decision must be set aside.
Applicant's Submissions
[18] The applicant submitted that the Board erred by referring to the applicant as a citizen of Guatemala who was born in Guatemala and who alleged fear of returning to Guatemala. The applicant submitted that the Board's erroneous findings regarding his nationality went to the heart of his claim and were not inadvertent, and thus the Board's decision must be set aside. The applicant also pointed out that the Board failed to discharge its obligation and acted without jurisdiction by not rendering a decision in relation to the applicant's nationality (El Salvador).
[19] In support of the above submissions, the applicant relied on two cases: Fernandez v. Canada(Minister of Citizenship and Immigration), 2005 FC 536 and Popovic v. Canada(Minister of Citizenship and Immigration), 2001 FCT 588. These decisions show that the case at bar is not the first time a Board has referred to the incorrect country of nationality in its decisions.
[20] In Fernandez, the refugee claimants were nationals of Argentina who alleged persecution at the hands of criminals in Argentina. The Board rejected their claims, finding that the claimants did not have a well-founded objective fear of persecution in Brazil as they had failed to rebut the presumption that states are capable of protecting their own citizens. The Federal Court set aside the Board's decision because it did not properly assess the risk faced by the claimants in relation to their home country, and the confusion of the country had an impact on the Board's analysis.
[21] In Popovic, the immigration officer denied the claimant's application for exemption on humanitarian and compassionate grounds to permit inland processing of his permanent residence application. The claimant alleged that he feared returning to his country of nationality, the Slovak Republic, because he would be persecuted by Gypsy gangs. The immigration officer made the mistake of referring to the claimant as a citizen of Romania who faced no undue hardship should he return to Romania. The Federal Court set aside the officer's decision because she had failed to assess the risk that the claimant would face in his country of nationality.
[22] The applicant submitted that if this Court finds the Board's error with respect to the country of nationality to be immaterial, there are other reasons as to why the decision should be set aside.
[23] First, the applicant submitted that the Board erred in finding that the dates of the alleged incidents given by the applicant at the hearing were inconsistent with his PIF. The applicant submitted that the Board failed to take into account that prior to the hearing, he had filed an amendment to his narrative which amended the dates.
[24] Second, the applicant submitted that the Board erred in finding that there was an inconsistency in the date of the incident on June 5, 2001 (amended to be June 5, 2003). The applicant submitted that contrary to what was stated in the Board's reasons, he never testified that the event occurred on January 5, 2003. The Board had accepted that the event occurred on June 5, 2003.
[25] Third, the applicant submitted that the Board erred by impugning the applicant's credibility on the basis of additional information regarding his injuries from the December 2003 attack. The applicant submitted that this information was brought out by the Board's detailed questioning, and therefore no adverse inferences should have been drawn by the omission of this information from the PIF (see Perera v. Canada (Minister of Citizenship and Immigration), 2005 FC 1069 at paragraph 18).
[26] Fourth, the applicant submitted that the Board erred in finding that the applicant's sojourn in the United States indicated a lack of subjective fear of persecution. The applicant submitted that he was constantly travelling to Canada and it was his intention to come to Canada to make a refugee claim. The applicant submitted that a short stay in a safe third country while en route is not necessarily considered a material enough sojourn to oblige the claimant to declare there on his or her way to Canada (see Mendez v. Canada (Minister of Citizenship and Immigration), 2005 FC 75 at paragraph 37).
[27] Finally, the applicant submitted that the Board failed to give adequate reasons for its statement that post-September 11, 2001, a person in the United States would not probably have fear of being forced to return if found illegally in the United States. The applicant submitted that the Board never confronted the applicant with the post-September 11 context and that this constituted a denial of fairness and natural justice.
Respondent's Submissions
[28] The respondent characterized the Board's error in referencing the incorrect country of nationality as a "syntactical error" and "simply an error in drafting". The respondent submitted that wherever the Board referred to Guatemala, it really meant to say El Salvador. The respondent submitted that the Board's syntactical error had no effect on the Board's understanding of the applicant's story and on its reasons for rejecting the applicant's claim, namely, that his story was not credible and that he lacked subjective fear. The respondent submitted that errors which do not affect the Board's understanding of the story cannot provide a basis for impugning the decision. The respondent cited the decision of Damen v. Canada (Minister of Citizenship and Immigration), 2003 FC 917, which held at paragraph 18 that the Board's error concerning a fact which is neither central nor material to the reasons for its decision is not a reviewable error within the meaning of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7.
Relevant Statutory Provisions
[29] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection;
. . .
|
|
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
. . . |
[30] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act define "Convention refugee" and "person in need of protection" as follows:
| 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.
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. |
|
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.
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. |
Analysis and Decision
[31] Standard of Review
The Board's findings on credibility are reviewable on a standard of patent unreasonableness.
[32] There is no dispute between the parties that the Board in its decision incorrectly referred to Guatemala (instead of El Salvador) as the country the applicant fled from because of alleged persecution. The Board also made specific adverse credibility findings against the applicant.
[33] I shall first address the credibility findings of the Board. The applicant established to my satisfaction at the hearing that these findings were patently unreasonable. By way of examples:
1. The Board stated that the applicant in his PIF stated that an incident took place on June 5, 2001 while in his oral testimony he stated it took place on January 5, 2003. A review of the transcript shows that the PIF was amended so that the date was June 5, 2003 and the applicant's oral testimony was that the incident occurred on June 5, 2003.
2. The Board stated that the applicant stated in his PIF that he feared the Malasaluatrucha gang but he testified that he could not identify his alleged attackers as being members of a gang. What the applicant testified to was that he could not identify his attackers, but he knew that they were gang members because on one occasion he saw their gang tattoos. In another incident, his wife and daughters who had witnessed the attack told him that he had been attacked by gang members.
3. The Board stated the applicant embellished his claim by adding physical injuries that were not contained in his PIF. These new injuries were introduced into evidence as a result of the Board's questions. This should not be a ground to discredit the applicant.
4. The Board stated that the applicant in his PIF stated he had been attacked by four men on November 8, 2003, while his testimony stated he was attacked by three men on December 8, 2003. The Board failed to note that prior to the hearing, the applicant had amended his PIF, which changed the dates of the attacks.
[34] At the hearing, the respondent attempted to justify the Board's credibility findings by referring to examples from the evidence which showed conflicts and inconsistencies. These examples were not used by the Board to find a lack of credibility. As a result, I have no way of knowing whether these examples would cause the Board to find the applicant to not be credible.
[35] This court has set aside decisions on previous occasions where the Board referred to the wrong country as the country of persecution for the applicant. In Fernandez v. Canada(Minister of Citizenship and Immigration), 2005 FC 536, Rouleau J. stated at paragraphs 18 to 20:
It is evident from the reasons of the RPD that it made a mistake in identifying the applicants' country of origin as Brazil rather than Argentina. The RPD have to assess the risk faced by the applicants in relation to their country.
As was decided in Popovic. v Canada, "the availability of state protection is country-specific". Even if that decision was decided in a slightly different context (H & C), the remarks on an officer confusing the country of the applicant is relevant.
The respondent argues that it was an inadvertent error and has no bearing on the analysis. In my opinion, there were doubts, when I read Brazil in the RPD's decision (written several times), that the analysis on the risks faced by the applicants in Argentina was not properly assessed. Thus, the confusion on the country has an impact on the analysis and the decision cannot stand.
[36] The same result should follow in the present case. The only references to a fear of persecution in the Board's decision are in respect of Guatemala, not El Salvador.
[37] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[38] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[39] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
J.F.C.
Ottawa, Ontario
December 7, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10532-04
STYLE OF CAUSE: JOSE ARNOLDO LANDAVERDE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 23, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
| Belinda Bozinovski
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| Stephen Jarvis
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SOLICITORS OF RECORD:
| Belinda Bozinovski Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
|