Date: 20040824
Docket: IMM-5998-03
Citation: 2004 FC1169
BETWEEN:
FABIAN HUMBERTO MERLO
MARIA EMILIA RUIZ DE MERLO
NICOLAS FEDERICO (FEDERIC) MERLO
MARIA AGUSTINA MERLO
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The Merlo family based their refugee claims on the political opinion or perceived political opinion of Mr. Merlo. He alleged that he denounced the corrupt dealings of high-ranking members of the federal government of Argentina and the government of Mendoza province.
[2] The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Mr. Merlo had neither a subjective nor an objective fear of persecution. The board did not find him to be a credible or trustworthy witness. In the alternative, the board concluded that even if Mr. Merlo's story were true, there was no nexus to a Convention ground.
[3] Mr. Merlo worked at a university. Among his other duties, he organized a series of concerts, known as Mozarteum, featuring national and international stars. His employer, various Argentine businesses, and the provincial government of Mendoza sponsored the concerts. Mr. Merlo claimed that the governor, Mr. Lafalla, agreed to provide the Mozarteum with concert space plus $4,000 per month from March until September, 1999. The governor allegedly reneged on the deal and Mr. Merlo denounced him in the Diario Una (a newspaper). The governor is now a senator.
[4] Mr. Merlo said that as a result of his actions, he was harassed at work and was forced to resign in December, 1999. He could not get a new job. He alleged that the government pressured businesses not to support his cultural events and that he felt responsible to the unpaid artists. He also claimed to have received threatening phone calls. When a meeting with the economic administrator at the Institute of Culture did not go well, he was threatened by the administrator to keep his mouth shut because of the political damage he was doing. More threatening phone calls followed.
[5] Mr. Merlo came twice to Canada - in May, 2000 (six months after his newspaper denunciation) and in November, 2000 (at the invitation of Radio Canada). His wife allegedly continued to receive threatening phone calls during his absence. He waited for his wife and children to flee Argentina in March, 2001 before making the refugee claims.
[6] The RPD noted that some of the significant facts in Mr. Merlo's testimony were not contained in his personal information form (PIF). It concluded that these were embellishments. The board did not accept Mr. Merlo's position that although there was no reference to corruption in the newspaper, it could be implied. It considered it implausible that someone as powerful as Mr. Lafalla would be so bothered by Mr. Merlo's comments that the governor would blacklist him with potential employers. Rather, the economic conditions in Argentina were likely to blame for his failure to find employment.
[7] The board found the story about the telephone calls implausible, but that even if true, the calls did not amount to persecution. It questioned why, if Mrs. Merlo felt so threatened, she waited so long to flee Argentina. There were no attempts to stop the family from leaving. In relation to nexus, the board concluded that the basis of the claim was a single, particular dispute over money and hurt pride.
[8] The applicants take issue with the board's credibility and implausibility findings, with its definition of corruption, and its application of the test for persecution. Regarding nexus, they insist that Mr. Merlo's denunciation of Mr. Lafalla was an expression of political opinion and that his denunciation of corruption placed him within a social group.
[9] In my view, the board's findings were reasonably open to it. The findings with respect to the inconsistencies between the PIF and the oral testimony were clear and unequivocal and the stated reasons for disbelieving Mr. Merlo were both intelligible and sufficient. Regarding the noted omissions, the RPD simply did not believe most of the oral evidence that had not been included in the PIF.
[10] The board believed the evidence about Mozarteum despite the fact that Mr. Merlo had not mentioned it in his PIF. However, while that evidence helped to clarify the situation, it did nothing to enhance the claim. There was no need to question him specifically on the omission - it was enough to ask general questions regarding the organization's activities.
[11] Regarding the argument with respect to corruption, while I might not have used the dictionary definition chosen by the RPD, the board was nonetheless entitled to conclude that the newspaper allegations were not allegations of corruption - however defined - but complaints about a dispute over a broken promise. That finding was not unreasonable.
[12] It was not improper for the board to refer to the refugee protection officer's observations. The board's reasons contained sufficient analysis with respect to the implausibility findings - and their implications for the decision as a whole - to be intelligible. There was evidence, provided by the applicants, that the Argentine press described corruption in direct terms. Mr. Merlo's evidence of ongoing complaints of dishonesty was not ignored; it was discounted as not credible. The board was entitled to rely on common sense and was entitled to conclude, on the facts, that Mr. Lafalla would not be motivated to threaten a relatively obscure individual who had made a single, public condemnation.
[13] There was ample evidence for the board to conclude that Mr. Merlo wanted to leave Argentina for economic reasons. He claimed to be both well-off and well-connected in Argentina. At the same time, he maintained that his wife and children were forced to stay behind for some months because they could not afford to travel immediately. It was not unreasonable for the board to find that Mrs. Merlo's staying in Argentina for financial reasons was not plausible if she truly feared for her life.
[14] The applicants have not persuaded me that there exists any error warranting my intervention in relation to the credibility and implausibility findings. The board is vested with jurisdiction to assess credibility and to draw the necessary inferences. As long as those inferences are not so unreasonable as to warrant the court's intervention, its findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[15] Although this is sufficient to dispose of the application, I also find no fault with the board's reasoning in relation to persecution or nexus. With respect to the former, the board was required to carefully analyze the evidence and properly balance the various elements contained therein: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.). It did precisely that and its finding that the phone calls were implausible, and in any event not persecutory, cannot be said to be capricious or unreasonable.
[16] With respect to nexus, the finding was an alternative one. In analyzing nexus, the RPD assumed that Mr. Merlo's story was true. At first blush, it appears that it may have reverted to its previous finding that there was no denunciation of corruption. A closer look reveals that, in the context of nexus, the board found that there was no denunciation of corruption that would bring Mr. Merlo within a social group.
[17] The RPD determined that there was only one reason behind Mr. Merlo's complaint. It concluded that the dispute was too "individualized" for Mr. Merlo to qualify as a member of a social group of people who oppose political corruption. While "particularized" might have better described the matter, the board's conclusion is nonetheless reasonable.
[18] Regarding political opinion, the nexus determination flowed from the finding that Mr. Merlo's "denunciation" would not be understood as such by Mr. Lafalla and the government. The board found no "subtlety" in the newspaper article, which did not condemn government corruption in general or even Mr. Lafalla in general. Rather, it was a single, particular dispute about "money and hurt pride". Consequently, the board concluded that there was no nexus to political opinion. That conclusion is not unreasonable.
[19] The applicants seek to have me reweigh the evidence to achieve a favourable result for them. That is not my function. My review of the record leads me to conclude that the findings of the RPD were reasonable. My intervention is not warranted.
[20] Counsel did not suggest a question for certification. No question is certified.
ORDER
The application for judicial review is dismissed.
_________________________________
Judge
Fredericton, New Brunswick
August 24, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5998-03
STYLE OF CAUSE: FABIAN HUMBERTO MERLO et al.,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 12, 2004
REASONS FOR ORDER
AND ORDER BY: Layden-Stevenson, J.
APPEARANCES BY: Ms. Cynthia Mancia
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD:
Mancia and Mancia
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Toronto, Ontario
Deputy Attorney General of Canada
For the Respondent