IMM-3447-96
B E T W E E N:
WILFREDO CRUZ QUINTERO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Edmonton, Alberta, the 9th day of May, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
Douglas R. Campbell
Judge
OTTAWA
June 6, 1997
05 I don't intend to recount the facts
06 here because there is a large deal of agreement and only
07 one real issue where the board's decision can effectively
08 be contested.
09 The board found that there is a
10 subjective fear, and the board also found that there is an
11 objective fear in relation to Mr. Quintero, and
12 what was done to him in an incident which occurred in
13 August 1993, where he was taken for what is quoted as a
14 "little ride."
15 As a result, Mr. Quintero is saying that the
16 people who did this to him produced this fear, which, as
17 I said, was accepted both objectively and subjectively.
18 Consequently, he is saying he qualifies as a refugee.
| 19 As to the background respecting Honduras, it is established on the record that the security systems operating |
within the community are effectively controlled by
| the government, that is, the military. Therefore, it must be reasonable for Mr. Quintero to fear these particular elements of the state. The question now only comes down to his unwillingness to go to them to |
02 seek protection for this incident which occurred in
03 August of 1993.
04 The argument raised by the Crown
05 is: Is there proof, in fact, that it was the
06 forces of the state that actually did this act, or could
07 it have simply been a private matter, say, between he,
08 the labour person, and the company which apparently
09 objected to this kind of labour activity?
10 I think all we have to go on in
11 this respect is Mr. Qintero's statement, which, apparently, was not
12 refuted, and which, apparently, was accepted. It is a
13 circumstantial piece of evidence that the persons who did this to him
15 were carrying weapons of such a nature that he concluded
16 that they were members of the DNI, the National
17 Investigations authority.
18 I think I am entitled to believe
19 that that is a piece of credible circumstantial evidence.
20 The board, I think, as well found it to be true, because
21 it is not challenged. This really
22 wasn't the substantive issue in any event.
23 The real issue was what Mr. Quintero did not
24 do. What he did not do is go to the state and seek
25 protection, and he is criticized for this. In effect,
26 the expectation in the decision is that he should have
01 done this, and because he didn't do it, then he can't
02 comply with the provisions and the definition of an
03 immigration refugee contained in Section 2 of the
04 Immigration Act.
05 The argument, in response, of
06 course, is it would be totally unreasonable for him to do
07 it, and it would be an unreasonable expectation for him
08 to do it based on his life experience; not just the
09 incident complained of, but other things which arose in
10 the past. They include a very troubled period in the
11 military, and an incident which
12 occurred in 1991 where he was hit on the neck by two
13 people who then rendered him unconscious. In other
14 words, this man comes to this incident in August 1993
15 with a certain background of fear.
16 The board made a critical finding,
17 and it is effectively contained in the following
18 sentence:
19 "In my view, the claimant did not adduce
20 evidence to justify why he did not seek state
21 protection.
22 His evidence did not constitute
23 clear and convincing proof of the state's
24 inability to protect."
25 Considering this background, as I
26 think is important to do, I point out that this finding
01 is not based on material before the board. In fact, if
02 the context is carefully viewed, and if, in fact, it is
03 understood, I agree with the submission that it would be
04 an unreasonable expectation for this man to go to the
05 state. I think the board erred in not giving this
06 sufficient consideration.
07 So I find that that particular
08 finding is not based on the evidence before it, and,
09 consequently, I set this decision aside and refer this
10 matter back to a differently constituted
11 panel of the Board for re-consideration
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3447-96
STYLE OF CAUSE: WILFREDO CRUZ QUINTERO v. MCI
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 9, 1997
REASONS FOR ORDER OF Mr. JUSTICE CAMPBELL DATED: June 6, 1997
APPEARANCES:
Mrs. Tia De Rousseau FOR THE APPLICANT
Ms. Lorraine Neill FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mrs. Tia De Rousseau FOR THE APPLICANT
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada