Date: 19980825
Docket: IMM-4089-97
BETWEEN:
EDGAR RAUL LOPEZ ESTRADA
BRENDA LOPEZ LOPEZ and
GILBERTO LOPEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board, wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act.1 The decision of the CRDD is dated the 6th of August, 1997.
[2] The applicants are citizens of Guatemala. Gilberto and Brenda are brother and sister. Edgar and Brenda are common-law spouses. All three base their claims to refugee status on an alleged well-founded fear of persecution if they are required to return to Guatemala, by reason of their political opinion and membership in a particular social group.
[3] Gilberto and Raul had a relatively limited involvement with the Guatemalan guerilla group known as the Guatemalan National Revolutionary Council. Their principal connection to the guerilla group was through a cousin of Gilberto. On the 13th of November, 1995, the cousin was shot to death by persons considered by the claimants to be members of the Guatemalan army. The assassination took place just outside a restaurant in the rural community where the applicants resided. In the course of the assassination, Gilberto's car was sprayed with bullets. Gilberto and Raul witnessed the assassination from inside the restaurant. They took cover under a table and eventually made their exit in a way designed to ensure that they would not encounter the assassins.
[4] Gilberto and Edgar went into hiding. The next day, Brenda advised them that members of the military were looking for them. Gilberto and Edgar fled to Mexico. Together with Brenda, Gilberto and Edgar made their way to Canada where the three made their refugee claims.
[5] Before me, counsel for the applicants urged that the CRDD erred in a reviewable manner in four respects: first, by engaging in speculation and conjecture in concluding that the fact that Gilberto and Edgar's car was "riddled with bullets" during the assassination was a result of random shooting rather than a deliberate attempt to damage that particular car; second, by failing to qualify Sister Agnes Ward who was called by the applicants to testify on their behalf as an expert; third, by applying an improper standard in determining the risk that the applicants would face if returned to Guatemala; and, finally, by improperly determining that the applicants' claim was defeated by changed country conditions in Guatemala.
[6] In its reasons, the CRDD wrote:
| The claimant's car and some of the other cars parked nearby were riddled with bullets. The claimant did not see it but believes that it was the army who did it. The panel finds that it was random shooting during the murders rather than a deliberate attempt to damage the claimant's car. |
[7] I do not interpret this paragraph as indicating improper speculation and conjecture on the part of the CRDD. On the totality of the evidence that was before the CRDD, its conclusion was reasonably open to it.
[8] Later in its reasons, the CRDD wrote:
| Based on the evidence before us, including the documentary evidence regarding current country conditions in Guatemala, we do not find it probable that the army would be interested in the claimants. |
| The panel finds that the claimant does not have good grounds for fearing persecution if he were to return to Guatemala. |
| [emphasis added] |
While the use of the word "probable" in the first quoted paragraph above is perhaps unfortunate, the CRDD adopts, in the second paragraph, terminology entirely consistent with that established by Adjei v. Canada (Minister of Employment and Immigration)2 as appropriate to describe the requisite test to be applied by the CRDD in determining Convention refugee status. I am not prepared to read the two paragraphs in abstract from one another. I conclude that to do so would be to engage in a microscopic dissection of the reasons of the CRDD. Read together, the two paragraphs disclose no reviewable error.
[9] Sister Agnes Ward gave oral testimony before the CRDD on behalf of the applicants. The CRDD reviewed her background and experience in relation to Guatemala at some length. It wrote:
| We note that she worked in Guatemala as a missionary from 1968 to 1970 and from 1974 to 1978. She also returned to Guatemala for a six-week visit in 1981, a two-to three-week visit during 1988 to 1989, and a six-week visit in 1990. |
The CRDD noted that Sister Ward now obtains her information regarding Guatemala from various sources, from most of which the CRDD itself receives information. It continued by noting that Sister Ward works in "refugee advocacy". Finally, it noted that Sister Ward has had no direct involvement in the recent peace process in Guatemala resulting in the peace accords signed at the end of December, 1996.
[10] The CRDD wrote:
| The panel has reviewed her curriculum vitae and carefully considered her oral evidence. We do not find her to be an expert witness with regard to recent developments and current country conditions in Guatemala... |
| Indeed, we might find Sister Agnes Ward to be an expert on country conditions in Guatemala for the period that she lived and worked in the country, namely, during the 1960s and 1970s, perhaps even the 1980s up to 1990, as she returned to Guatemala for several visits. However, with regard to current country conditions in Guatemala, the panel prefers to rely on the documentary evidence before us. |
| [emphasis added] |
[11] In R. v. Marquard3, Madame Justice McLachlin wrote, on the issue of expert evidence, for the majority :
| The only requirement for admission of expert opinion is that the "expert witness possesses special knowledge and experience going beyond that of the trier of fact" : R. v. Beland...[1987] 2 S.C.R. 398. |
I find no basis on which to conclude that Sister Agnes Ward possessed special knowledge and experience going beyond that of the CRDD, a specialized tribunal, on the issue of current country conditions in Guatemala at the time relevant to this matter, that is to say, the time when the hearing before the CRDD took place. In the result, I find no reviewable error on the part of the CRDD in failing to qualify Sister Agnes Ward as an expert witness for the limited purposes of the application for Convention refugee status of these applicants.
[12] I turn then to the fourth and final issue raised before me on this matter, that is, the CRDD's determination regarding changed country conditions in Guatemala.
[13] The CRDD reviewed at some length the documentary evidence before it regarding changes in conditions in Guatemala in the period leading up to the signing of the peace accords in December of 1996 and in the months following. It does not, of course, review on the face of its reasons all of the documentary evidence before it. It is not required to do so.4 The CRDD concludes:
| The panel prefers the documentary evidence, which is finds current and reliable, over the claimant's stated opinion. The documentary evidence shows that even long time guerillas are not in danger, let alone persons with limited involvement such as the claimant. |
[14] Counsel for the applicant urges that the CRDD erred in not reviewing in its assessment of changed country conditions the "meaningfulness", "effectiveness", and "durability"of the changes. In Yusuf v. Minister of Employment and Immigration5, Mr. Justice Hugessen emphasized that a change in country conditions is a determination of fact. He wrote:
| A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: Does the claimant now have a well-founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene. |
[15] Against the guidance provided in Yusuf, I reach the same conclusion here. In this case there was evidence before the CRDD to support its negative finding on this issue.
[16] For the foregoing reasons, this application for judicial review will be dismissed.
[17] Counsel for the applicant recommended certification of a question in the following terms:
| In applying a change of circumstances, is the Immigration and Refugee Board obligated to determine the significance, durability and effectiveness on a factual basis to negate an individual's fear of persecution? |
Counsel for the respondent recommended against certification of a question.
[18] No question will be certified. I am satisfied that the answer to the question proposed is to be found in the reasons in Yusuf, referred to earlier.
"Frederick E. Gibson"
Judge
Toronto, Ontario
August 25, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4089-97
| STYLE OF CAUSE: EDGAR RAUL LOPEZ ESTRADA |
BRENDA LOPEZ LOPEZ and
GILBERTO LOPEZ
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, AUGUST 24, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: TUESDAY, AUGUST 25, 1998
APPEARANCES: Mr. Mangesh Duggal
For the Applicants
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Mangesh S. Duggal
Barrister & Solicitor
1604-372 Bay St.,
Toronto, Ontario
M5H 2W9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980825
Docket: IMM-4089-97
Between:
| EDGAR RAUL ESTRADA |
BRENDA LOPEZ LOPEZ and
GILBERTO LOPEZ
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
3 (1993), 85 C.C.C. (3d) 193 (S.C.C.)
4 See Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.)