Date: 19990128
Docket: IMM-1551-98
OTTAWA, Ontario, the 28th day of January, 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
VICTORIA SANTAMARIA MEJIA
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
ROULEAU J.
[1] The application for judicial review is allowed and the matter is sent back for redetermination by a differently constituted panel.
P. ROULEAU
J.
Certified true translation
Bernard Olivier
Date: 19990128
Docket: IMM-1551-98
Between:
VICTORIA SANTAMARIA MEJIA
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] The applicant is an Honduran citizen claiming Convention refugee status as a result of her and her husband's participation in trade-union activities in the company they were working for in Honduras.
[2] The applicant submits that in 1990, when the union was engaged in bargaining to renew the collective agreement, she and her husband, who has died since his arrival in Canada, began to receive threats and pressure from people hired by the company to intimidate members of the union.
[3] She says that after the collective agreement was signed in May 1992, she and her husband received death threats.
[4] The applicant submits that in January 1993 her husband again received death threats from some agents of the DIN, a section of the Honduran army, but that he nevertheless decided to continue with his union activities, being the union's general secretary at the time.
[5] On two occasions in 1993, the applicant's husband was attacked by members of the DIN. Finally, he was fired in September 1993. The applicant was also fired in December 1993 for union activities.
[6] Following her and her husband's dismissals, the union filed a complaint against the said dismissals, which resulted in new threats.
[7] The applicant says she continued to participate in union activities for about three months after her dismissal because she was the grievance secretary.
[8] The applicant left Honduras for the United States in April 1994, and her husband subsequently came to join her. As the parents of six children who remained in Honduras, the applicant and her husband had to send money to the children and wait before being able to come to Canada and request refugee status.
[9] The applicant and her husband arrived in Canada in August 1995. He has since died.
[10] Following her examination, the adjudicators decided that the applicant lacked credibility on the ground that her testimony differed from that of her husband concerning the particulars pertaining to the death threats that had been made.
[11] Concerning the grievance secretary's position in the union, the adjudicators doubted the significance of the applicant's role, since her husband had never mentioned in his PIF that his wife held such a position.
[12] The adjudicators questioned the existence of a well-founded fear of persecution, since the applicant had continued to participate in the union's meetings for about three months after her dismissal.
[13] In regard to the documentary evidence that was filed, the adjudicators drew attention to a document entitled Country Reports on Human Rights Practices for 1996, which indicates that there is labour legislation in Honduras and it is possible to organize unions.
[14] The adjudicators also noted that the applicant lived in the United States for more than a year without ever requesting refugee status.
[15] For these reasons, the panel held that there was no reasonable possibility that the applicant would be persecuted should she return to Honduras and accordingly that she was not a Convention refugee.
[16] The issues in dispute are the following:
1. Did the panel err on the facts in doubting the credibility of the applicant's testimony?
2. Did the panel err in law by failing to take into account all of the documentary evidence that was filed?
[17] It is true that the applicant, at question 37 in her PIF, bases her claim on the answer to the same question 37 in her husband's PIF of October 1, 1996. The panel found that the applicant's testimony differed from that of her husband. More particularly, the adjudicators refer to an incident in January 1993 in which the applicant's husband, in his presentation, indicated that threats had been made against him by a group that was part of the Internal Investigations Directorate, while the applicant, in her testimony, stated that these threats probably originated with the company. In fact, what the applicant's husband stated in his PIF was: "[Translation] in January 1993, a DIN agent gave me a message telling me I would be killed and my family too; and then asked that I withdraw from the union, and my mates told me not to withdraw, to continue; so I continued." How can it be said that this differs essentially from the applicant's testimony? She maintained that the threat may have originated with the DIN and she concluded that it probably came from the company. I see no discrepancy.
[18] The panel further stated: "[Translation] The panel believes that, now that her husband is dead, the claimant is exaggerating her importance within the union. Moreover, her husband, in his account, refers to his wife as follows: '[Translation] she was working in packaging' and 'she participated in the union's activities.' In his reply to question 37, her husband never mentioned that his wife had been a member of the union's executive.["?] To determine from her deceased husband's account that the applicant was not a member of the union executive seems to me to be an exaggeration on the part of the panel, leading it to conclude that she was not credible. The question of whether or not the applicant was a member of the executive was never raised in the husband's PIF.
[19] In another paragraph, the panel argues that the applicant, after being fired from her job, participated for three months in union meetings held every Monday in the company's offices, and concludes that her conduct was not typical of someone who had a well-founded fear of persecution. I do not see how attending some union meetings could eliminate the possibility of a fear of persecution.
[20] I find, therefore, that the panel has misconstrued the evidence and intentionally overlooked a number of revealing items.
[21] The panel further states that the documentary record informs us that workers have the right to form unions and negotiate collective agreements in Honduras. The claimant testified that the laws existed but were not enforced. The panel refers to only one item of documentary evidence to support its finding that workers are adequately protected under labour legislation that was drafted or promulgated in Honduras. But in the documentation, the Human Rights Watch World 1997 condemns the Honduran authorities. And the report of Amnesty International for 1997 fully concurs, at page 9:
The law protects workers' rights to organize and to bargain collectively; collective bargaining agreements are the norm for companies in which workers are organized. However, although the Labour Code prohibits retribution by employers for trade unions activity, it is a common occurrence. Some employers threaten to close down unionized companies, harass their workers and in some cases fire them from trying to form a trade union...
Labour leaders blame the government for permitting management to act contrary to the Labour Code and say that this problem will continue until the Ministry of Labour is organized to make it more efficient. They criticize the Minister for not enforcing the Labour Code...
[22] The July 1996 report of the Democracy Office/Human Rights reads as follows, at page 116:
Labor / Peasant Members
The right to organize and bargain collectively is recognized by the Constitution, and 18 percent of the labor force is unionized. Three large peasant associations are also directly affiliated with the trade unions. Leaders and members of these two groups are frequent asylum applicants, alleging mistreatment by military/police forces and/or thugs hired by employers or land owners to thwart strikes or land occupations.
[23] At page 130 of the Court record, Honduras - Mise-à-jour, a document prepared by the Documentation, Information and Research Branch of the Immigration and Refugee Board, states:
[Translation]
Human Rights
Americas Watch noted that in 1993 "Political violence had clearly diminished, but the military, including the FUSEP (a police force), customarily settled economic and personal disputes by resorting to violence"; furthermore, persons placed in police custody are often tortured and mistreated.
In this same report, at page 135:
[Translation]
Corruption is considered one of blights of Honduras. The apparent impunity of corrupt leaders is matter of particular concern....
[24] All of this documentary evidence on the human rights conditions in this country was completely overlooked by the panel, which relied solely on one item of law.
[25] It is obvious that the panel failed to take into account the evidence as a whole, essentially documentary, that was put before it concerning the situation in Honduras.
[26] In Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497, Cullen J. made the following observations about a panel's consideration of the documentation that is filed:
... Once again, I am concerned that no mention of this documentation is made in the reasons. I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information, particularly where in its own reasons it notes that there are genuine refugees from the Punjab. The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position.
[27] In the case at bar, the panel states at page 5 of its decision that it considered some part of the documentation indicating the existence of a right of association, without analyzing it in any detail.
[28] I conclude that the panel's decision is unfounded in regard to the issue of credibility and that the documentary evidence was not evaluated objectively.
[29] The application for judicial review is allowed and the matter is sent back for redetermination by a differently constituted panel.
P. ROULEAU
J.
OTTAWA, Ontario
January 28, 1999
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO:IMM-1551-98
STYLE:VICTORIA SANTAMARIA MEJIA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:MONTRÉAL, QUEBEC
DATE OF HEARING:JANUARY 19, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED: JANUARY 28, 1999
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
PASCALE-CATHERINE GUAY FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA