Date: 19991215
Docket: IMM-1890-99
BETWEEN:
ELVIN FRANCISCO TURCIOS
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
Muldoon J.
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, Chap I-2 (the Act), of a decision by the Immigration and Refugee Board dated March 22, 1999 determining that the applicant is not a convention refugee. The applicant was granted leave to seek judicial review by order of McGillis J. dated September 20, 1999. The applicant seeks a writ of certiorari setting aside the decision, a writ of mandamus ordering the respondent to refer the matter for a new hearing and an order prohibiting the Department of Citizenship and Immigration from executing a deportation order against the applicant.
Facts
[2] The applicant, Mr. Elvin Turcios, is 31 years old. He was born and raised in Coyoles Central in Honduras. His problems began after he was conscripted into the military in 1986. After an initial period as a truck driver, he was promoted to sergeant and began to report directly to sub-lieutenant Molinas. He was ordered at least four times, by sub-lieutenant Molinas, to lead a search party to find and torture or execute insurgents. He insisted, however, on bringing any captives back to base alive, apparently pursuant to standing orders. For his troubles, he suffered various indignities at the hands of sub-lieutenant Molinas, such as being tied under his bed.
[3] In December of 1987, sub-lieutenant Molinas and other low-ranking officers accompanied the applicant on one of his search parties and ordered him to torture three insurgents who were caught. When the applicant refused, he was beaten and held in a jail for over five days. He was only released after his uncle, a retired colonel, heard of the applicant"s predicament and contacted the base commander, Colonel Salvago. The applicant was immediately released from prison while sub-lieutenant Molinas was demoted and imprisoned for five years. Other officers involved were also dealt punishments.
[4] The applicant was unofficially discharged from the military at his uncle"s request, Before he left, however, he became aware that officers were selling drugs which they had found, instead of destroying them pursuant to orders. He understands that the officers in question consider him a danger in that he could reveal to others this crime. These officers began looking for the applicant after his discharge; he believes that his brother was shot several weeks later having been mistaken by these officers for him. He was also apparently shot at after recognizing one of the officers while on a bus. All these incidents took place in the four months following the applicant"s illegal imprisonment. He did not report them to the police as he feared that they would only hold him while asking his old battalion about him. This, he theorized, would allow the officers in question to get their hands on him.
[5] The applicant states that his uncle, the retired colonel, advised him to leave Honduras as he, the uncle, could not protect him. The applicant left in March of 1988, travelling to Guatemala, Mexico and stopping in the United States. He remained there nine years, until April of 1997, when he travelled to Canada and claimed refugee status.
[6] The applicant"s hearing was held on November 24, 1998. The Immigration and Refugee Board panel convoked to hear the applicant"s application (the CRDD panel) included
Mr. Andrew Rozdilsky and Ms. Sherry Wiebe. The CRDD panel refused the application in a decision dated March 22, 1999.
[7] In the reasons for decision, the CRDD panel wrote that there is no link between the torment experienced by the applicant and a convention ground recognized in section 2 of the Act. It noted that the attempts to harm the applicant were criminal acts perpetrated by a band of rogue officers. It also noted that the violence committed against the applicant was swiftly put down by the base commander. The CRDD panel also found that there was little evidence to indicate that there is any current threat to him.
Legal Issues
[8] The CRDD panel evaluated the applicant pursuant to subsection 2(1) of the Act. Subsection 2(1) of the Act provides:
| 2. (1) In this Act, [...] "Convention refugee" means any person who
[...]
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
2. (1) Les définitions qui suivent s'appliquent à la présente loi. [...] "réfugié au sens de la Convention" Toute personne_:
[...]
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don"t le texte est reproduit à l'annexe de la présente loi. |
[9] There are three issues in dispute. The first issue concerns whether the CRDD panel erred in determining that the applicant can have no well-founded fear of persecution should he be returned to Honduras. The second issue concerns whether the applicant"s application must fail because he did not seek the protection of the state after the shootings and prior to leaving Honduras. The final issue concerns whether the CRDD panel erred in determining that there was no link between the claimant"s fear of persecution and a convention ground. The applicant submits that, at the root of the applicant"s suffering were his political opinions. He argues that the panel did not consider this. The applicant also argues that the CRDD panel erred in defining persecution only in terms of state actions. The respondent allows that the panel erred in this respect. The last issue will not be addressed in any more detail in the light of this Court"s findings concerning the first two issues.
[10] In respect to the first issue, the applicant submits that the CRDD panel failed to consider all of the evidence before them prior to concluding that he would not face any threat were he to be returned to his country. The evidence in question is of the two shootings which occurred after the applicant had been discharged from the army. The applicant contends that evidence of past persecution is one of the most effective methods of establishing that a fear of future persecution is well-founded. The respondent submits that the two shootings were not ignored and, in the alternative, that they can only play a limited role in determining what the current potential for persecution is.
[11] The test for a well-founded fear of persecution can be found in Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R.129. In it, Heald J.A. wrote, at
p. 134:
| This Court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention Refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. |
[12] The applicant submits that fear of persecution can best be objectively determined by looking at any previous acts of persecution which have taken place. This Court acknowledges that past persecution is one source of evidence but rejects that it is necessarily the best and rejects the applicant"s submission that Rajudeen, supra stands for this. Pratte J.A., in Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398, wrote, at p. 404:
| The adjudicator and the member of the Refugee Division must decide whether it is possible for the Refugee Division to recognize the refugee status of the person claiming it. To arrive at this decision they must take into account any credible evidence tending to establish the facts relevant to this question. The fact that the political situation existing in a claimant's country of origin has developed in such a way as to remove the reasons causing him to fear persecution is obviously a fact relevant to the question of whether that person can validly maintain that he is a Convention refugee. The question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future. |
[13] These comments support the conclusion that past persecution is to be considered if it be relevant. They also support the argument that changes in non-political events, such as the interests of a gang of rogue officers, are relevant in establishing whether a fear is well-founded. One cannot assume that all those officers, and everyone who reveres their memory, are now dead, and that their misdeeds are exempt from punishment. Their being state officials while acting against the applicant provides ample nexus, for the State either did not, or could not prevent them from persecuting the applicant.
[14] On reading the final portion of the CRDD panels"s reasons, it is clear that the two shootings were not considered as factors relevant to the fear of a current threat of persecution. Many other factors are considered and the two shootings are noticeable in their absence. The Court questions, however, whether the shootings should not have, in any event, been given more weight. The officers who persecuted the applicant are shown to be ruthless armed egotists, who would persecute the applicant if given the opportunity. The two shootings, almost twelve years ago, illustrate their opportunism, if not their long memories. This Court finds, therefore, that even had the panel turned its mind to the two shootings, they would have been given so little weight as not to change their conclusion; and that the applicant does need to fear persecution in Honduras. That they were not considered, therefore, is fatal to the CRDD panel"s decision.
[15] The respondent raises the issue of whether the applicant"s application must fail because he did not seek the protection of the State after the shootings and prior to leaving Honduras. The applicant submits that he was not required, in the circumstances, to seek state protection. He also submits that a correct appreciation of the uncle"s advice leads to the conclusion that state protection was not available and, therefore, that the applicant suffered persecution.
[16] The decision by La Forest J., in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (hereinafter Ward), provides that a refugee claimant does not need necessarily to seek the protection of his State prior to leaving his country. It indicates, however, that the claimant must adduce evidence concerning a State"s inability or unwillingness to protect the claimant in order for his claim not to fail. La Forest J. wrote:
| Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. |
| The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. |
[17] The dispute centres around the uncle"s advice to the applicant to flee the country and the implication that he considered the State unable to protect the applicant. The essence of the applicant"s argument is that there is inadequate proof in the reasons to indicate that the uncle"s implied opinion was considered. The opinion, however, is mentioned in the early part of the reasons. That it was not addressed again, when a few other pieces of evidence were highlighted, is sufficient to assume that it did not weigh in the final determination. Rather, the only conclusion one can reach from this is that the uncle"s opinion did not weigh heavily in the minds of the CRDD panel members. Even were this Court to be in error, it is not clear that a consideration of the uncle"s opinion would lead to a change in the panel"s erroneous conclusion.
[18] The applicant"s uncle is a retired colonel and is no doubt knowledgeable about the workings and abilities of the military apparatus in Honduras. His opinion in respect of its ability to afford protection to the applicant, however, does carry as much weight as that of a State representative. It does, when added to the other evidence, confirm the inability of Honduras to protect its citizens. In light of the fact that he is retired and that he admits that his influence is limited, for instance, it is possible that his appreciation of the State"s abilities is somewhat dated or in some other way inaccurate, but that does not make it probable. His opinion, therefore, amounts to sufficient evidence of an inability on the part of the State to protect the applicant.
Conclusion
[19] The applicant did show that the CRDD panel erred in determining that he did not meet the definition of a convention refugee. The application, therefore, must be allowed. The applicant"s counsel formulated what he thought was a serious question of law to be certified, but the Court declines to certify it.
[20] The case is referred to a newly assembled CRDD panel which is directed to adjudicate it in avoidance of the errors of fact and law, herein above described, which beset the decision reviewed herein. The applicant"s requests recited in paragraph [1] are granted.
"F.C. Muldoon"
Judge
Winnipeg, Manitoba
December 15, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1890-99
| STYLE OF CAUSE: ELVIN FRANCISCO TURCIOS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: December 15, 1999 |
REASONS FOR ORDER
| OF THE COURT: The Honourable Mr. Justice Muldoon |
DATED: December 15, 1999
APPEARANCES
David Davis for the Applicant
800 - 310 Broadway
Winnipeg MB R3C 0S6
Nalini Reddy for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg MB R3C 0S6
SOLICITORS OF RECORD
David Davis for the Applicant
Morris Rosenburg for the Respondent
Deputy Attorney General of Canada