Date: 19990429
Docket: IMM-1826-98
Between :
JOSE LUIS TORRES GOMEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated March 10, 1998, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The Board concluded that the applicant had not established a link between the criminal acts of which he was a victim and one of the five grounds recognized by the definition of "Convention refugee":
| The tribunal concluded that the claimant lived in an area where there is a high number of cattle thefts. . . . |
| It is quite possible that the claimant was among the 20 cattle ranchers who had been victims of the group of ten who operated in the "bajos Choloma" area. |
| [ . . . ] |
| The claimant has presented no evidence that could lead the panel to believe there could be any political motive behind this criminal activity. |
| The panel concludes that the thefts . . . are criminal in nature and that there is no link with one of the five reasons recognized by the definition of "Convention refugee". |
[3] The Board determined as well that the applicant did not have a credible basis for his claim pursuant to subsection 69.1(9.1) of the Immigration Act.
[4] First, I find there is no merit to the applicant's argument that the Board's decision that there was "no evidence" before it showing imputed political opinion was patently unreasonable. In my opinion, the Board's use of the term "no evidence", in the context of the entire decision, does not show it did not consider the totality of the evidence. Indeed, with respect to the wealth of documentation which is pointed to by the applicant and which shows that cattle theft and related criminal activity was problematic in the area in which the applicant farmed, the Board agreed that this evidence was credible. However, the Board concluded that there was no link between all this criminal activity and one of the five enumerated grounds in the Convention refugee definition. In my view, this shows the Board did indeed consider the evidence as it understood the criminal activity that plagued the applicant's region. Nonetheless, I find it reasonable to conclude that the corrupt officials were doing this for their personal gain and that they did not set out to persecute the applicant for his imputed political beliefs. It was not unreasonable for the Board to find that the applicant was the victim of corruption and theft but that the fact that government officials were responsible for the theft does not necessarily mean he was being persecuted for his political opinions.
[5] As noted by the respondent, in several decisions of this Court, it has been held that victims of organized crime do not necessarily have a nexus between the alleged fear and a Convention ground (see, for example, Rizkallah v. M.E.I. (1994), 156 N.R. 1, Yuen v. M.E.I. (July 7, 1994), A-599-91 and Calero et al. v. M.E.I. (August 8, 1994), IMM-3396-93).
[6] I do not find, therefore, that the act of the applicant has been "politicised" merely because he complained of corruption and theft.
[7] In his written Memorandum of Fact and Law, the applicant also relies on Mathiayabaranam v. M.E.I. (1995), 94 F.T.R. 262, where the Trial Division of this Court ruled that given the serious consequences of a no credible basis finding, the Board was obligated to provide the applicant with notice that the issue was being considered so as to have an opportunity to make submissions. As the respondent notes, that decision was overturned by the Appeal Division of this Court when it held that there is no right to receive any extra notice about the possibility of a finding of no credible basis. After having acknowledged this, counsel for the applicant argued for the first time that the Board erred in law "in failing to motivate its finding of no credible basis". This new argument is set aside on the ground that the Board's finding of no credible basis is supported by the same sufficient reasons given in the decision in support of its finding that the applicant is not a Convention refugee. The principle of this ground is consistent with the following comments made by Linden J.A., in Mathiayabaranam v. M.E.I. (1997), 221 N.R. 351, at page 354:
| . . . a credible basis determination is inherent in the definition of Convention refugee. It does not place upon the claimant an evidentiary burden separate from or additional to the primary one imposed by the definition itself. |
[8] Consequently, the application for judicial review is dismissed.
[9] Counsel for the applicant proposed the following questions for certification:
| 1. DID THE TRIBUNAL MAKE A PERVERSE FINDING OF FACT OR OTHERWISE ACT WITHOUT REGARD FOR THE EVIDENCE WHEN THEY DETERMINED THAT THE APPLICANTS (sic) CLAIM LACKS A CREDIBLE BASIS WHEN EVIDENCE OF PERSECUTION BY SECURITY FORCES, AND AN ABSENCE OF STATE PROTECTION IS UNCONTRADICTED? |
| 2. DID THE TRIBUNAL ERR IN LAW IN FAILING TO MOTIVATE ITS FINDING OF NO CREDIBLE BASIS CONSIDERING THE CONSEQUENCES OF SUCH A FINDING? |
[10] The first proposed question deals essentially with facts and, therefore, ought not be certified. As for the second question, I have found that indeed the finding of no credible basis is motivated and, therefore, the proposed question is academic.
JUDGE
OTTAWA, ONTARIO
April 29, 1999