Date: 20020508
Docket: IMM-1391-01
Neutral citation: 2002 FCT 519
BETWEEN:
MARIA ELENA PRADO DE GUERRA
FACUNDO GUERRA
FLORENCIA GUERRA
ENZO GUERRA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These are my reasons for setting aside the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") made on February 5, 2001, which found the applicants not to be Convention refugees.
BACKGROUND
[2] Maria Elena Prado de Guerra and her three minor children are citizens of Argentina and are the applicants in this proceeding. Their husband and father, Eduardo Javier Guerra, came to Canada on May 23, 1998 and the applicants followed on July 13, 1999. A claim for status as Convention refugees was made by the family on September 30, 1999 based on Mr. Guerra's fear of union members in Argentina.
[3] After arriving in Canada, Mrs. Prado de Guerra and Mr. Guerra separated, and their refugee hearings were disjoined. Prior to the hearing of the applicants' claim Mrs. Prado de Guerra submitted an amended narrative to her Personal Information Form ("PIF"), setting out that while she still fears the same union members, now she primarily fears persecution from her estranged husband.
[4] Mrs. Prado de Guerra states that while in Canada and living in Toronto her husband developed a drinking problem and became physically and sexually abusive towards her, although he had been physically abusive to her in Argentina as well. On one occasion in Toronto she had to leave their home and seek refuge in her brother-in-law's house. In December, 1999, she was physically and sexually assaulted by her husband. When their son, Facundo, tried to defend Mrs. Prado de Guerra he was pushed to the floor by Mr. Guerra. The police were called and they took the applicants to a shelter, where they stayed for three months. After three months, the applicants moved into a Metro Housing townhouse.
[5] The hearing before the CRDD took place on December 4, 2000.
THE CRDD'S DECISION
[6] The CRDD accepted that Mrs. Prado de Guerra was a victim of spousal abuse in Toronto. However, the CRDD determined that she was not a Convention refugee because her claim was not well-founded for three reasons. First, the CRDD found that there was no persuasive evidence that Mr. Guerra was in Argentina or would be in Argentina if the applicants returned there. Second, the CRDD found the applicants to have an internal flight alternative in Buenos Aires. Third, Mrs. Prado de Guerra's fear of union members was found to be no longer well-founded given that she is now separated from her husband and there is no reason to believe that the union members would target Mrs. Prado de Guerra in Buenos Aires.
THE ISSUES
[7] Mrs. Prado de Guerra does not challenge the decision of the CRDD with respect to her fear of union members. Although the applicants raised a number of issues with respect to the balance of the decision, my understanding of the proceedings and the evidence before the CRDD makes it unnecessary to consider all of the issues argued by the applicants. What is determinative of this application are the key findings of the CRDD as to the well-foundedness of the fear of persecution and the internal flight alternative.
ANALYSIS
(i) The Well-Founded Fear of Persecution
[8] Central to the decision of the CRDD was its conclusion that Mr. Guerra was not and would not be in Argentina.
[9] The evidence that Mr. Guerra, a failed refugee claimant, was going to return to Argentina was found to be unpersuasive by the CRDD because:
Based on specialized knowledge (from years of experience with the Board), the panel is aware that there are several other ways by which Argentineans can stay in Canada, other than that of being a Convention refugee. Also, even if Eduardo is ordered deported, there are also various avenues for appeal that most refugee claimants undertake to delay their departure from Canada. Even if Eduardo will be forced to leave Canada, Eduardo has options of going to another country, such as the USA. As he entered Canada from the USA, he will likely be deported back to the USA. We have no persuasive evidence that Eduardo has exhausted these various options.
The claimant told us that Eduardo will voluntarily leave Canada for Argentina. When asked why he will do so, the claimant replied that this is because his parents are still there. We do not find this explanation reasonable, given that Eduardo has sisters and a brother here in Canada.
[10] In so concluding, the CRDD committed a number of errors.
[11] First, while the CRDD is entitled to rely upon its specialized knowledge, subsection 68(5) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") provides:
| 68(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto. |
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[1] No notice was provided by the CRDD of whatever the CRDD contemplated as being "other ways by which Argentineans can stay in Canada". Nor did the CRDD raise with the applicants at the hearing the spectre that Mr. Guerra "will likely be deported back to the USA".
[12] Before me the Minister argued that because the CRDD referred to its specialized knowledge, this did not make the subject matter specialized, and the CRDD could take judicial notice of the potential for delay which arises from applications for judicial review, motions for stays and the like. The Minister also argued that because Mr. Guerra had entered Canada through the United States, pursuant to subsection 52(2) of the Act return to the United States was reasonably open to him.
[13] On the applicants' behalf it was argued that it was speculative to consider any delay in the absence of evidence of any proceeding or application brought by Mr. Guerra, that it was unfair to contemplate removal to the United States when Mr. Guerra did not qualify under the "Reciprocal Arrangement between the Canada Employment and Immigration Commission and the United States Immigration and Naturalization Service, Department of Justice for the Exchange of Deportees between the United States of America and Canada"(because Mr. Guerra would not have been denied admission at a port of entry), and that the reference in the evidence to Mr. Guerra having 30 days to leave Canada indicated that Mr. Guerra had likely made an unsuccessful application for membership in the Post Determination Refugee Claimant's Class in Canada and that removal proceedings had been commenced.
[14] The inquiry into the existence of a well-founded fear of persecution is to be forward-looking. Having found Mrs. Prado de Guerra to be a victim of spousal abuse it was necessary for the CRDD to determine if there was a serious possibility of persecution by her husband in Argentina.
[15] The relevant evidence before the CRDD was that Mr. Guerra arrived in Canada on May 23, 1998 and that he made a refugee claim on September 30, 1999 which was denied on June 19, 2000. Indeed, Mr. Guerra's claim was denied by one of the two members of the CRDD which considered the claim of the applicants.
[16] Mrs. Prado de Guerra testified that Mr. Guerra had told the children that he was going to Argentina, and that he either had to go on the 15th of December or to tell immigration authorities in the first two weeks of December when he was going to return. Mrs. Prado de Guerra further testified that on November 28, 2000 Mr. Guerra had left a letter with her that immigration authorities required Mr. Guerra to attend on November 30, 2000 with specified documents and that after that, on November 30, 2000 Mr. Guerra had called her to blame her for the fact that he had been given 30 days to leave Canada.
[17] While for proper reasons it would be open to the CRDD to reject Mrs. Prado de Guerra's testimony about her husband's stated intentions and his dealings with immigration authorities, the CRDD instead rejected that testimony on the basis of its speculation that, despite the evidence that Mr. Guerra lacked legal status in Canada and was required to leave Canada, Mr. Guerra would remain in Canada, or would delay leaving Canada, or would return to the United States. At the least, on the evidentiary record as to Mr. Guerra's status in Canada, fairness required the CRDD to raise the ability of Mr. Guerra to be removed to a place other than Argentina so that the applicants were given a meaningful opportunity to address the concerns of the panel on this point.
[18] Similarly, in the absence of evidence as to the comparative nature of Mr. Guerra's relationship between his parents on the one hand and his siblings on the other, the CRDD speculated when it found it more reasonable that Mr. Guerra would choose to be with his siblings rather than his parents.
[19] In the absence of a proper stated basis for rejecting the evidence that Mr. Guerra was required to leave Canada, and had stated his intent to return to Argentina, the CRDD committed a reviewable error in finding that the applicants had no well-founded fear of persecution because Mr. Guerra was not, or would not be, in Argentina.
(ii) Internal Flight Alternative
[20] The CRDD then went on to say "Eduardo does not appear to be this monster who would track the applicant all the way to Buenos Aires just to hurt her". This, in spite of Mrs. Prado de Guerra's testimony, which the CRDD found credible, that while in Canada her husband had started beating her almost every week, had raped her, had threatened to seek revenge on her because she had left him taking the children, had made threats to hurt her in the past nine months, and she feared he would follow her wherever she went in Argentina and that he would kill her. The CRDD's basis for its finding that Mr. Guerra would not follow Mrs. Prado de Guerra and hurt her was as follows:
i) No charges had been laid against Mr. Guerra by the Toronto police.
ii) Mrs. Prado de Guerra's lawyer did not advise her to seek a restraining order against Mr. Guerra.
iii) While Mrs. Prado de Guerra was living at the townhouse, the only problem she encountered was that Mr. Guerra had yelled at her, but he stopped when she threatened to call the police.
iv) Mr. Guerra is only violent when he drinks, and he is no longer drinking.
v) Most compellingly, Mr. Guerra was invited by Mrs. Prado de Guerra to her home for their son's birthday party, and Mr. Guerra did not cause any problems.
[21] A number of those reasons were contrary to the evidence. Mrs. Prado de Guerra's lawyer did seek a restraining order, and Mr. Guerra entered into a peace bond. While it is true that Mrs. Prado de Guerra testified that her husband had not been drinking during the last month, at the same time she stated that he was now articulating violence toward her when he was not under the influence of alcohol. Mrs. Prado de Guerra did not invite Mr. Guerra to their son's birthday party. Rather, he was invited by his son.
[22] Reliance on the fact that Mr. Guerra only yelled at Mrs. Prado de Guerra at her townhouse to support the conclusion that he would not follow her was perverse where the uncontradicted evidence was that Mrs. Prado de Guerra was in hiding in the townhouse, and that while its location was supposed to be kept secret from Mr. Guerra, he was able to, and did, find her there.
[23] Moreover, particularly given the evidence that Mr. Guerra had been willing and able to track down his estranged wife at her townhouse, it was an error for the CRDD when considering Mrs. Prado de Guerra's internal flight alternative in Buenos Aires to have failed to have considered the evidence that Mr. Guerra's claim to refugee status was dismissed on grounds which included that he had an internal flight alternative in Buenos Aires.
[24] Therefore, the CRDD erred in a reviewable matter when for the reasons it did, it concluded that there was no more than a mere possibility that Mr. Guerra would go to Buenos Aires to persecute the applicants.
[25] For these reasons, the application for judicial review will be allowed.
[26] Some submissions were received from counsel at the oral hearing on certification of a question. However, I advised counsel that I would afford them the opportunity to provide submissions on certification with the benefit of these reasons. Each party will therefore have seven days from receipt of these reasons to serve and file submissions on the certification of any question. Additionally, each party will have a further three days to serve and file reply submissions to the position of the opposite party on certification of a question. Following consideration of those submissions, an order will issue allowing the application for judicial review.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1391-01
STYLE OF CAUSE: Maria Elena Prado De Guerra and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 12, 2001
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 8, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANTS
Ms. Angela MarinosFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANTS
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada