Date: 20040402
Docket: IMM-3002-03
Citation: 2004 FC 494
Vancouver, British Columbia, Friday, the 2nd day of April, 2004
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
PATRICIA GUADALUPE SERPAS DE URBINA
and PAULO ERNESTO URBINA SERPAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Ms. Serpas de Urbina is a citizen of El Salvador. She brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Panel") that neither she nor her 11 year-old son have a well-founded fear of persecution in El Salvador. The Panel also found that neither Ms. Serpas de Urbina nor her son were persons in need of protection. A single reason was given for that conclusion. The Panel did not find Ms. Serpas de Urbina to be credible or trustworthy.
BACKGROUND FACTS
[2] Ms. Serpas de Urbina and her son are the only remaining members of her family to live in El Salvador. Her father had promoted the prosecution of three police officers in El Salvador in 1979 for the murder of two of his brothers and the attempted murder of the girlfriend of one of the brothers. The police officers were jailed and remained in jail until 1985 when the jury failed to convict them after the trial was adjourned for the 16th time.
[3] After the accused officers were released from detention, Ms. Serpas de Urbina's father and other family members were brought to Canada as Convention refugees. At that time, Mr. Serpas brought to Canada his second wife, their two children, his mother, his two sisters and their children, and his one remaining brother and the brother's family. Ms. Serpas de Urbina remained in El Salvador with her mother. This was because they did not believe they would be targeted and because Ms. Serpas de Urbina's mother and father were in the course of divorce proceedings and her mother did not wish to leave the country with her estranged husband.
[4] Later, in 1987, Ms. Serpas de Urbina's mother left El Salvador with her children, including Ms. Serpas de Urbina. They fled to Guatemala after Mr. Serpas' persecutors began to threaten his first wife and their children in order to induce his first wife to disclose the whereabouts of Mr. Serpas.
[5] In 1989, Ms. Serpas de Urbina returned to El Salvador with her future husband, using her husband's name. She then lived in El Salvador without trouble until her father and stepmother visited her in August of 2000. Ms. Serpas de Urbina testified that when her father came to visit her at the store she operated, he noticed four men were following him. He recognized that one of the men was one of the police officers who had been charged with the murder of his brothers.
[6] After Mr. Serpas left El Salvador in 2000, Ms. Serpas de Urbina began receiving harassing telephone calls. She testified she was followed, her vehicle vandalized, threatening letters were sent to her and her son was threatened. She eventually left El Salvador to come to Canada. She testified that she was told that after she left El Salvador men continued to come to her store to ask about her whereabouts.
THE DECISION OF THE PANEL
[7] The Panel noted that Ms. Serpas de Urbina's oral testimony was consistent with her written narrative and with the interview she had with Citizenship and Immigration officers after making her refugee claim. Ms. Serpas de Urbina's father also testified and the panel observed that his testimony was consistent with his daughter's narrative. Notwithstanding, the Panel went on to consider the plausibility of the events of August 2000.
[8] The Panel made the following statements in its analysis of that testimony:
· Ms. Serpas de Urbina "testified she is not certain as to how these individuals managed to find out that her father had returned for a visit in August of 2000 and followed him to her place of employment".
· "The panel finds that if the individuals that were observed by her father outside her place of business on August 6, 2000 were connected to the 1979 murders, this was an incredible coincidence as the claimant's father had fled to Canada in 1986. However, the claimant speculates that in all probability her father was followed by these individuals from the airport. She [sic] that there are always many police in the airport at San Salvador and that it would be easy for them to make the connection to the claimant's father's name when he went through their customs. Someone would have contacted the police to give them the information that he was back in town and thus they were able to get to the airport in sufficient time to follow him to the claimant's business in the shopping mall".
· "The panel does not find this speculation as being plausible. It would be an incredible coincidence if, in fact, one of the police officers that had been held in custody due to the claimant's father's complaint to authorities in 1979 would coincidentally be in the shopping mall to witness his presence in his daughter's store on that particular day with three individuals in his company".
· Mr. Serpas testified that "as he was going into the mall he noticed they were being followed and that he definitely recognized one of the individuals to be one of the policemen that had been arrested in 1979 and who was out to possibly kill him. He said later he noticed the same individual at a supermarket".
· "[T]he panel still had concerns as to how plausible it would have been for one of the three police that had been detained in 1979 due to the claimant's persistence in having them arrested - would just coincidentally show up on the date of his second return trip to El Salvador".
· "However, having assessed all of the evidence adduced at this hearing, the panel has not accepted that the claimant's testimony is credible or trustworthy in respect to she [sic] and her father receiving threats from individuals connected to the police pertaining to the arrest on a murder charge which occurred in 1979. The panel has not accepted that the claimant having returned to El Salvador in 1989 either by coincidence or the communication by police on August 6, 2000 to these assailants in locating the claimant's father when he was visiting her place of business" [reproduced as set out in the Panel's reasons].
[9] In view of its finding of credibility, the Panel made no assessment on the availability of state protection, delay in claiming refugee status, or the objective basis of the claim.
THE STANDARD OF REVIEW
[10] The parties agree, on the basis of the jurisprudence of this Court, that the standard of review to be applied to the credibility or plausibility findings of the Panel is that of patent unreasonableness.
[11] As to what is a patently unreasonable decision, a clear explanation was provided by Mr. Justice Iacobucci for the unanimous Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748. Mr. Justice Iacobucci wrote at paragraph 57:
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy of obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. Observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.
ANALYSIS
[12] An examination of the transcript of the evidence given before the Panel together with the reasons of the Panel reveal certain defects. First, Ms. Serpas de Urbina gave none of the testimony attributed to her by the Panel. Her father did give evidence in which he provided conjecture as to how it was that he was observed by one of the policemen involved in the murder of his brothers in 1979. It appears that the Panel erroneously attributed that testimony to Ms. Serpas de Urbina.
[13] Mr. Serpas' testimony was as follows:
Q So, Mr. Serpas, can you tell us what happened in August of 2000 when you returned to El Salvador for a visit?
A Well, my wife and I arrived back in El Salvador in 2000, on August 6th, in fact.
PRESIDING MEMBER: Is that your first time back?
THE WITNESS: No, I don't -- I'd gone back another time, but only just to go in and leave again. A long time ago, yes. That day, after arriving there on the 6th of August, that week, in the first week, we went to visit my daughter at her business that she had there in the mall. It's a mall. And as we were entering into the mall, despite the fact there were many people going inside, you could see that there were some people that were interested in following our steps. But we carried on. We carried on to her store. We went into the store. We greeted her. So these guys stood outside in front of the window, watching us. When I saw these guys standing there, I looked and I recognized one of the policemen there that had killed my brothers. [...]
Q What did you think about that situation?
A I thought horribly. These guys had been following my steps since I arrived. It seems like they were following me from the airport because there was so much -- it seems their connections are so fast that --so I said, "Pattie, let's go." So I go and I say, "No, we're going back to Canada." I asked the airline for a flight, but they couldn't give me one until a week later. During that period, I was leaving the supermarket one day in the car when I saw the guy standing in the street, the same one. So I said, "No way, this is dangerous here." So then after that, I didn't go out into the street again until I took the plane a week later. [underlining added]
[14] In response to questions put to him by the presiding member, Mr. Serpas' testimony was as follows:
Q Now, coming back now again to August 2000. I just want to make sure I understood your testimony correctly. You're believing that it's possible that these individuals that were following you actually followed you from the airport into the mall?
A I suppose so, because the place there is full of police, because I imagine that that's what happened, because everybody that arrives -- because they have a network whereby everybody who arrives, they watch them with a view to assaulting them, to holding them up. If they have information whereby, for example, here so and so has arrived and is carrying such and such objects of value. That is, the employees there pass on information to the others.
Q But the individual that you recognized, and this would be 14 years later after you had left El Salvador --
A What's the question?
Q You said the individual that you recognized, you hadn't seen for 14 years?
A Yes. But I don't forget, I can't forget it. I don't forget, and they don't forget me either.
Q Wearing civilian clothing?
A Yes. Their faces don't change.
Q You wouldn't have any knowledge of whether he was or was not still working for the police?
A Well, no. Directly, no, I don't know, but -- but I imagine he's not in active service, no. But the contacts, yes, still having contacts.
Q But if he's still not active with the police, why would he have been possibly at the airport and followed you from there?
A Because they're involved or in association with the same ones that are on active duty, and they have continuous information.
Q So 16 years later, there would have been some message sent to them that you had come back to El Salvador?
A I don't know. Perhaps it was just luck that they were able to locate me. [underlining added]
[15] The Panel correctly realized Mr. Serpas only speculated that he was followed from the airport. To the extent the Panel spoke of one of the policemen coincidentally showing up "on the date" of Mr. Serpas' return to El Salvador, the Panel appears to have misunderstood the evidence. The testimony was that the policeman first appeared during the first week of Mr. Serpas' visit.
[16] Having recognized that the explanation as to how Mr. Serpas was found was conjecture, the Panel conducted no further analysis of the evidence. The Panel rejected the entire testimony of Ms. Serpas de Urbina and her father because it found it implausible that Mr. Serpas was followed from the airport or that the persecutors were otherwise notified of his arrival in El Salvador. The Panel did not mention Mr. Serpas' testimony that the airport is watched for criminal purposes and did not mention his testimony that he could have been found due to happenstance. The Panel would not accept the plausibility of coincidence or happenstance.
[17] An assessment of the plausibility of testimony requires that the testimony be tested against known or undisputed facts. Thus, in Leung v. Canada (Minister of Employment and Immigration) (1994), 81 F.T.R. 303, then Associate Chief Justice Jerome wrote at paragraphs 14 and 15:
14. Both divisions of this Court have consistently held that the Board's decisions must be based on the totality of the evidence contained in the Record. This does not mean, however, that the Board must summarize all of the evidence, or that a decision will be quashed simply because the Board has failed to refer to some minor piece of documentary evidence in its reasons. Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence.
15. This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusions. [underlining added, footnotes omitted]
[18] Plausibility findings are to be "nourished" by reference to the documentary evidence. See: Fok v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 800 (C.A.); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (T.D.).
[19] In the present case, the Panel appears to have based its finding of implausibility upon the fact that significant time had elapsed since the 1979 murders and the fact that Ms. Serpas de Urbina's father was observed while on a short visit to El Salvador.
[20] Missing was any analysis of the documentary evidence before the Panel which was replete with evidence as to the involvement of the police in organized crime, illegal telephone wire tapping for blackmail or organized crime operations, and the linkage of organized criminal networks to government and public security institutions. The documentary evidence included newspaper clippings that established the notoriety of the prosecution of the three police officers who were charged with the murder of Mr. Serpas' brothers. One of the prosecuted officers had been an inspector with the National Police.
[21] I am mindful that findings of implausibility should not be set aside lightly, and that great deference is owed to credibility findings made by the Refugee Protection Division.
[22] However, here the evidence of Ms. Serpas de Urbina and her father was not found to be either internally inconsistent or inconsistent with one another. Their testimony was not contradicted by any documentary evidence. The finding that neither Ms. Serpas de Urbina nor her father were credible or trustworthy was based solely upon the Panel's subjective assessment that it was unlikely that Mr. Serpas would be spotted in El Salvador by either one of his persecutors or by someone who would report his presence to his persecutors. The testimony of Ms. Serpas de Urbina and her father was not tested against what the documentary evidence regarding country conditions in El Salvador.
[23] This defect is, in my respectful view, obvious and hence is patently unreasonable. Clear reasons grounded in the evidence were required for rejecting the testimony of Ms. Serpas de Urbina and her father on the sole ground that it could not reasonably be expected that Mr. Serpas was located by his persecutors while he was in El Salvador.
Page: 11
[24] For these reasons, the application for judicial review will be allowed.
[25] Counsel did not pose any question for certification and no question arises on this record.
ORDER
[26] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board dated March 31, 2003, is set aside.
2. The matter is remitted for redetermination before a different panel of the Refugee Protection Division of the Immigration and Refugee Board.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3002-03
STYLE OF CAUSE: PATRICIA GUADALUPE SERPAS DE URBINA et al.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 30, 2004
REASONS FOR ORDER AND ORDER: DAWSON J.
APPEARANCES:
Mr. Christopher Elgin for Applicants
Ms. Sandra E. Weafer for Respondent
SOLICITORS OF RECORD:
Elgin, Cannon & Associates for Applicants
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General for Canada