Date : 20040127
Docket : IMM-2713-03
Citation : 2004 FC 117
BETWEEN :
VICTOR MANUEL DURAN BREUCOP
ALEJANDRA LOREN SALCEDO LOPEZ
ARIEL ALEJANDRO DURAN SALCEDO
PATRICIA LISETT SALCEDO LOPEZ
CAMILA GAMBOA SALCEDO
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, 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 March, 31, 2003, in which it was determined that the Applicants are not Convention refugees.
[2] The principal claimant, Alejandra ("the reporter Applicant") is married to Victor ("the Applicant husband"), and Ariel is their child. Patricia is the sister of Alejandra, and the mother of Camila. All of the Applicants are citizens of El Salvador. The reporter Applicant is also a citizen of Guatemala, since she was born there. She worked as a journalist in El Salvador, and claims a well-founded fear of persecution based on her political opinion. The other Applicants' claims are based on membership in a particular social group, namely as members of the reporter Applicant's family, and base their claims on the circumstances of the reporter Applicant. In addition, the Applicants claim that they are persons in need of protection because they fear their lives will be at risk, or that they will be subjected to cruel and unusual punishment in El Salvador.
[3] The Applicants allege that after the reporter Applicant wrote two articles in the newspaper El Diario de Hoy, they were threatened with harm if she did not stop writing articles concerning kidnappings and criminal activities. The first article was published on January 28, 2001, and the second on April 22, 2001. The Applicants claim that the threats intensified after the second article was published, and that they received numerous hang-up calls and telephone threats, and their babysitter claimed a man was watching their house on several occasions. Additionally, on May 10, 2001, the Applicant husband was allegedly stopped by armed men, a gun was put to his head, and he was kicked and warned to stop his wife from writing further articles.
[4] The Applicants did not seek help from the government, or anyone else in El Salvador. They claim this was because they do not trust the police and fear the police may be implicated in the threats.
[5] Additionally, although the reporter Applicant is a citizen of Guatemala, she left a number of years ago, and has not lived there since. She also claimed that journalists are at risk in Guatemala as well.
[6] In written reasons for its decision, the Board concluded that the Applicants were not Convention refugees. In particular, it found that there was insufficient credible and trustworthy evidence to establish that the Applicants had a well-founded fear of persecution, or were persons in need of protection.
[7] The Board determined that the Applicants were not threatened or watched, and that the Applicant husband was not physically assaulted. While the Board accepted that the reporter Applicant was a journalist and had written the articles, it noted that she did not express an opinion in the articles, rather, she just reported the news of the day. Additionally, although the reporter Applicant testified that she knew of other journalists who had, in the past, been persecuted in El Salvador, she was not aware of anyone at her newspaper or at another publication that had been threatened or harmed in any way.
[8] The Board considered documentary evidence with respect to journalists in El Salvador and found it to be contradictory. The Board found this undermined the reporter Applicant's claims that other employees of the newspaper were possibly involved in the threats she and her family allegedly received, or that reporters generally in El Salvador are targeted because of their articles. Additionally, the reporter Applicant testified that she was not aware if the individual who co-authored the second news article had experienced problems as a result of the story. The Board found it was questionable that she was unable to attest to similar problems that may have been experienced at the newspaper by other reporters; how could she be the only one targeted considering that the second article was co-written?
[9] The reporter Applicant also testified that she did not inform anyone at work about the problems she was experiencing, as she did not trust anyone. The Board found it unreasonable that she would fear her co-workers, who, like her, report the news; the Board found this undermined her credibility further. She also testified that she did not report any of the alleged incidents to the police, as she believes they are corrupt. The Board found this unreasonable, in light of the Applicants' further allegation that their home was being watched.
[10] Additionally, the Board noted that the Applicant husband contradicted his wife's testimony, his sister-in-law's testimony, as well as his own Personal Information Form, when he testified that they only received hang-up calls after the first article was published and at that time there was nothing to indicate that they were being harassed. He testified he became aware that his family was being harassed only after he received a threatening call at home, after the second article was published. Additionally, he testified that the reporter Applicant returned to work immediately after his attack. However, both the reporter Applicant and her sister testified that she had stopped working. The Board found it unreasonable that her husband would be unaware that she had stopped working.
[11] The Board further noted that the reporter Applicant and her husband applied to immigrate to Canada in 2000. However, the Applicant husband testified that he never received a response after filling out his application, so he assumed that his family did not meet the requirements. The Board found the Applicants had fabricated allegations in order to found their refugee claim, having failed to pursue a possible immigration application to Canada.
[12] Additionally, the Board noted that the Applicants arrived in the United States on June 2, 2001 and entered Canada on June 4, 2001; that the Applicants did not claim refugee status in the US, even though the Applicant husband's brother resides in that country. The Board found that not claiming refugee status at the first opportunity further undermined the Applicants' credibility and that their actions did not support a subjective fear of persecution.
[13] The Board considered the availability of state protection in El Salvador and noted that the Applicants did not make an attempt to secure protection for themselves. The Board concluded that the Applicants did not provide clear and convincing proof that the state would not be able to protect them and, accordingly, the presumption of state protection had not been rebutted.
[14] The Board concluded that the Applicants were not credible, that there was insufficient evidence to establish that the Applicants had a well-founded fear of persecution, and that there was no serious possibility of a risk to the Applicants' lives or that they would be subjected to cruel and unusual treatment or punishment if they returned to El Salvador.
[15] The Board then alternatively considered whether the reporter Applicant could seek protection from Guatemala, and whether or not she has a well-founded fear of persecution there. It concluded there was insufficient credible and trustworthy evidence to establish that the reporter Applicant would be at risk in Guatemala because of her occupation. The Board also concluded that if the family returned to El Salvador without the reporter Applicant, they would not be at risk, even if their story of harassment was in fact true.
[16] The Applicants raise five main issues in this application for judicial review. First, the Applicants submit that the Board applied the incorrect standard of proof in its decision. The Applicants claim the Board used different standards of proof throughout its reasons, including that of "a balance of probabilities".
[17] The Board did not use the incorrect standard of proof in its decision. The fact that the Board did not use precisely the same language every time it stated a conclusion does not mean that it used different standards of proof in determining whether the Applicants had a well-founded fear of persecution. The Board only applied the standard of "a balance of probabilities" when making evidentiary findings.
[18] Second, the Applicants submit that the Board's assessment of their subjective fear was incorrect, as it was based on a determination that it was unreasonable that the reporter Applicant did not inform anyone at work, nor the police, about the problems she was experiencing. Further, the Applicants submit that since the Board accepted that the reporter Applicant was the author of the two articles, as well as the country condition information relating to journalists in El Salvador, it should have concluded that the reporter Applicant had a well-founded fear of persecution.
[19] I agree with the Respondent's submission that the Board was examining the alleged events in order to determine whether they were plausible and that this could go to assessing either credibility or subjective fear. The Board examined the evidence as provided by the Applicants and, although it accepted some of it, the Board could not conclude that there was a well-founded fear of persecution.
[20] Third, the Applicants submit that their testimony, along with the country condition information before the Board, was sufficient to establish the validity of their claim. I cannot agree with this submission. Even though the Board accepted the country condition information, it had to put the information into context with the facts in this case. Although the reporter Applicant worked on stories of crime and corruption, and there had been reporters kidnapped in the past, this was not sufficient to establish a well-founded fear of persecution.
[21] I agree with the Respondent's submissions that the information presented did not establish that every person working as a journalist reporting on criminal acts in El Salvador has a reasonable chance or serious possibility of being persecuted or a well-founded fear of persecution. Additionally, there is insufficient proof that every reporter in Guatemala also has a well-founded fear of persecution.
[22] Fourth, the Applicants submit that the Board erred in its consideration of the evidence and that some of the Board's findings are illogical and made without regard for the evidence.
[23] In examining a claim for refugee status, a Board should consider all of the evidence in order to properly evaluate the credibility of a claimant. In this case, some of the information did not support the reporter Applicant's claim and, therefore, the Board found this adversely affected her credibility. It is trite law that the Board has the discretion to make credibility findings involving a claimant and is in the best position to do so. Accordingly, this Court gives great deference to a Board's findings regarding credibility and a reviewing Court should not lightly disturb such findings. After thoroughly reviewing the submissions of the parties and the decision of the Board, I see no error that necessitates the intervention of this Court.
[24] Further, the Applicants submit that the adverse inference drawn from their failure to claim refugee status in the US is not a proper basis for doubting the credibility of a refugee claim. However, in the case of Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 at para. 27, cited by the Respondent, Justice Blanchard recognized "[t]he fact of passing through a country which is a signatory of the Convention without claiming refugee status as quickly as possible may be one factor in assessing the subjective aspects of [a] claim." Although in Pissareva the time the claimant spent in the US was considerably longer than was the case here, the fact that the Applicant husband had a brother already living in the US supports the Board's adverse inference. Accordingly, the adverse finding made by the Board with respect to the Applicants not claiming refugee status at the first opportunity should not be disturbed by this Court.
[25] Additionally, the Applicants argue that the Board violated the principle of family unity by examining the claim of the reporter Applicant in Guatemala. However, the principle of family unity, as defined by Justice Nadon in Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 at para. 18, states: "The principle of family unity requires that persons granted refugee status should not be separated from their closest family members, particularly when a situation of dependency exists; it is a principle of togetherness." Thus, the principle of family unity applies to someone who has been found to be a refugee. Since the Applicants in this case were not found to be refugees, the principle does not apply to them.
[26] Lastly, pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, part of the determination of the well-foundedness of a claimant's fear of persecution is a determination of his or her state's ability and/or willingness to provide protection. Where the presumption of state protection is not rebutted by a claimant, the claimant cannot be said to have a well-founded fear of persecution. In this case, the Board found that the Applicants had failed to provide clear and compelling proof that the Salvadoran state would not be able to protect them, thus, they did not rebut the presumption of state protection.
[27] The Applicants proposed the following question for certification:
"Where one member of the family is a dual national and the others are not, does the principle of family unity require the Refugee Protection Division of the Immigration and Refugee Protection Board to dispose of the claim in such a way that the family would remain united?"
[28] As explained above, the principle of family unity does not apply to an individual who has not been found to be a refugee. Therefore, this question will not be submitted for consideration.
[29] This application for judicial review hereby dismissed.
JUDGE
OTTAWA, Ontario
January 27, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-2713-03
STYLE OF CAUSE : VICTOR MANUEL DURAN BREUCOP et al v. M.C.I.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 14, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: January 27, 2004
APPEARANCES:
Mr. David Matas FOR THE APPLICANT
Ms. Nalini Reddy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. David Matas
601 - 225 Vaughan Street
Winnipeg, Manitoba
R3C 1T7 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney general of
Canada FOR THE RESPONDENT