Date: 20050127
Docket: IMM-1837-04
Citation: 2005 FC 75
ENTRE:
ALBERTO LUIS CALDERON MENDEZ
Demandeur
- et -
LE MINISTRE DE LA CITOYENNETE
ET DE L'IMMIGRATION
Défendeur
REASONS FOR ORDER
TEITELBAUM 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 February 6, 2004, in which the Applicant was found not to be a Convention refugee or person in need of protection.
FACTS
[2] The Applicant is a 26-year old Peruvian citizen who is claiming persecution on the grounds of his religion, his political opinions and his membership in a particular social group. He is an ex-priest of the Catholic Church, specifically the Order of St. Augustine. He states in his PIF that he was educated by Fathers of the Order and associated with it from childhood, beginning in 1984.
[3] The Applicant claims that as a seminarian in training with the Order, he witnessed misappropriation of funds by his supervisor, Father Corronado. He also says a fellow student confided in him that he had been sexually abused by another priest, Father Larran. When the Applicant spoke out about these abuses, reporting them both to the regional supervisor and to an authority in the Vatican, he was in February 2001 re-assigned to a village in the middle of the jungle. His task there was to distribute clothing on behalf of the government, which made him a target for harrassment by local members of the terrorist group The Shining Path ("Sendero Luminoso"). He sought and was granted permission to transfer out of this posting in March 2001.
[4] In his final year of training at the seminary, the Applicant states he was instructed by the priests that he must use his sermons to support government policies. He stated his opposition to doing so and was again sent to an outlying posting in a terrorist-controlled zone of the country. He was ordained as a priest in August 2002, but states that he received a phone call from the Ministry of the Interior reiterating the necessity of supporting the government, which he refused to do. He says the threats against him escalated and he decided to leave the priesthood very shortly after he entered it.
[5] After leaving the priesthood, the Applicant moved, and had found a job in the construction industry by February 2003, but says he continued to receive threatening phone calls wherever he went. He says he was kidnapped by two men in April 2003, beaten, threatened with a gun and told to return to his religious life within the Order and keep quiet.
[6] The Applicant fled the country, flew to New York City in the United States on May 13, 2003, took a bus to Canada on May 21, 2003, and claimed refugee status here on June 18, 2003. He says his parents have received threatening visits and phone calls since he left, warning them that their son should not return to Peru.
THE DECISION
[7] The Board refused the Applicant's refugee claim on the following grounds:
- The Applicant's PIF did not provide the detailed allegations of financial wrongdoing and sexual abuse that were raised at the hearing, but referred only to general abuse and financial mismanagement. The Board viewed the Applicant's responses to questions about these incidents as contradictory and unsatisfactory, and did not believe his claim that he was acting in a secretarial capacity to Father Corronado and witnessed the financial transactions. The Board also did not believe the Applicant's friend had been sexually abused because the Applicant had not specified in the PIF that the abuse he was referring to was sexual.
- The Board stated that even if it were to believe the account of facts by the Applicant, the actions of two priests in attempting to silence him would be based on personal vengeance, not a Convention ground of persecution.
- The Board stated that it did not believe the Applicant's allegations of threats from the government, because the person he named as the source of the threats, a Minister of the Interior named Mr. Costas (who was verified to have been in this position), is no longer the Minister and is not there to threaten the Applicant any more. The Board also noted that the Applicant is no longer a priest so the government can have no fear of what he will and will not say in his sermons.
- The Board found the Applicant's testimony about the contents of the threats he and his family received to be inconsistent, since some told him to return to the Order and others told him to stay out of the country. The Applicant claims he heard about threats made to his parents on June 18, 2003, the day he signed his PIF, but did not include them in his PIF at the time or later on, when he amended his PIF before the hearing.
- While the Board accepted the Applicant's proof of identity, it did not accept the other documentation he provided, including a medical certificate, a police report and a sworn declaration from the Applicant's father, to be proof that the Applicant was attacked in the manner he says he was.
- The Board did not accept the Applicant's explanation that he did not seek asylum in the United States because he was uncomfortable with the current American political situation and felt Canada was a more peaceful country. The Board stated that someone truly fearing for his life would have declared at the first country he arrived in that was a party to the Convention.
[8] The Board also found that the Applicant was not a person in need of protection under s. 97 because he was not credible, and there was therefore no proof that he belonged to the category of persons who the country reports for Peru indicated would be at risk for torture and cruelty.
ISSUES
[9] I will summarize the issues in this case as follows:
1. Did the Board commit errors of law?
2. Did the Board make findings of fact that were patently unreasonable?
APPLICANT'S SUBMISSIONS
[10] The Applicant submits that the Board made a patently unreasonable finding of fact when it stated that the Applicant failed to add to the PIF the information about the threats received by his parents. The Applicant points to the amendments to Q. 41 of the PIF referring to calls received by his parents after his departure. The Applicant also points to the sworn statement of the Applicant's father dated November 4, 2003, indicating that the father received a visit from police searching for the Applicant under an order of the Minister of the Interior on May 30, 2003, a threatening phone call on June 25, 2003 stating it was now known that the son had left the country and that he had better stay away, and another similar threatening phone call on October 28, 2003.
[11] The Applicant submits that in light of the evidence provided, it was unreasonable for the Board to find that the Applicant should have added these events to his PIF before signing it on June 18, 2003 when two of them had not happened yet, and an error of fact for the Board to find that the Applicant did not mention them in his subsequent amendments to the PIF.
[12] The Applicant argues that the Board's use of the absence of these incidents from the amended PIF to discredit the sworn statement of the father was also patently unreasonable, since the PIF did actually include a reference to them.
[13] The Applicant cites Chahal c. Ministre de la Citoyenneté et de l'Immigration, (1999) 177 F.T.R. 234, [1999] A.C.F. no 1482 [QL], to support the argument that the PIF does not have to be continually re-amended to include every detail of later incidents. The Applicant states that the Board's hearing was held on December 8, 2003, and that the more recent jurisprudence cited by the Respondent on this point, particularly the December 19, 2003 judgment in Udeagbala c. Ministre de la Citoyenneté et de l'Immigration, 2003 FC 1507, [2003] F.C.J. No. 1906, is not applicable since it did not exist at the time of the hearing.
[14] The Applicant also questions the Board's treatment of other objective evidence, the country conditions report on Peru. The Applicant argues that the Board did not question this evidence, but gave no reasons for finding that the Applicant was not at risk of such treatment, as required by Levtchenko c. Ministre de la Citoyenneté et de l'Immigration, [1998] F.C.J. No. 1260 [QL].
[15] The Applicant also points particularly to the Board's language in rejecting the Applicant's s. 97 claim:
Le tribunal ne partage pas ce point de vue, même s'il reconnaît qu'il existe dans le cas de personnes arrêtées et détenues la pratique de la torture et de traitements cruels et inhumains car, compte tenu des problèmes de crédibilité du demandeur et de la preuve présentée, je ne crois pas qu'il ait établi l'existence de motifs sérieux justifiant, dans son cas, l'application de l'article 97(1) (a) et b)
[16] The Applicant submits that the decision reads as though the consideration of a s. 97 claim is a discretionary decision, when this is not borne out by the actual language of the section. The Applicant argues that the Board committed an error of law by not analyzing the s. 97 claim at all because it felt the Applicant did not have a credible case to make, especially in light of the basis on which the Board found some of the evidence not to be credible.
[17] The Applicant cites Abarajithan c. Ministre de la Citoyenneté et de l'Immigration, [1992] F.C.J. No. 54 [QL], to support the argument that while an error in analyzing the proof is not automatically reviewable, it can be where it affects the central basis of the Board's decision.
[18] The Applicant submits that the Board also erred in law by finding that the Applicant is required to claim in the first Convention country in which he arrives. He cites Gavryushenko c. Ministre de la Citoyenneté et de l'Immigration, (2000) 194 F.T.R. 16, [2000] F.C.J. No. 1209 [QL], for its finding that while such behaviour can go to credibility, the Convention states that no claimant is required to claim in the first Convention country he reaches.
[19] The Applicant challenges the Board's finding that even if the Applicant's story was true, the only persecution he would be subject to would be based on personal vengeance for the revelation of individual criminal acts by the priests, not Convention grounds. The Applicant submits that the Applicant clearly explained why the motivation for his persecution was political, testified that he was being asked to support government policies in his sermons, named a government official involved with the threats against him, and provided a police statement where he had indicated some of these facts (a piece of evidence the Board rejected).
[20] The Applicant submits that the Board's rejection of the credibility of the medical certificate was patently unreasonable, based on this statement by the Board:
Le demandeur a fourni un certain nombre de documents à l'appui de sa demande, dont particulièrement, un certificat médical (P-10). Cependant, il s'agit d'un document qui ne constitue pas une preuve qu'il a été agressé.
[21] The Applicant argues that this medical certificate does indeed provide proof of an attack on the Applicant, whether or not it corroborates the reasons for the attack. The certificate specifically lists the independent observation of "des poly traumatismes au crâne, thorax et membre inférieur suite aux examens pratiques permettant de constater lésions". The Applicant cites (Badibanga) Ngoyi c. Ministre de la Citoyenneté et de l'Immigration, (2000) 6 Imm. L.R. (3d) 297, [2000] A.C.F. no 272 [QL], to support its argument that the Board must give reasons for rejecting the authenticity of such a document, and if it does not do so, must note if it corroborates the account of the claimant.
[22] The Applicant submits that the Board did not explicitly challenge the Applicant on the credibility of his testimony, as required, and asserts that the Board's finding of non-credibility was patently unreasonable in light of the level of detail and extensive explanation provided by the Applicant.
[23] In response to an allegation by the Respondent that the Applicant did not personally witness the sexual abuse, the Applicant states that his subjective fear is based on persecution for reporting and denouncing the sexual abuse he was told about to his superiors.
RESPONDENT'S SUBMISSIONS
[24] The Respondent submits that the Applicant was required to recite all material details of his claim in his PIF, and that the Board's finding is reasonable in light of the fact that the Applicant did not do so. The Respondent notes that in addition to the overly-generalized description of abuse and financial mismanagement in his PIF, the Applicant also introduced another new fact at the hearing, his role as Father Corronado's secretary which enabled him to witness the financial transactions.
[25] The Respondent submits that the persecution feared by the Applicant is in any case no longer relevant, since Mr. Costas is no longer Minister of the Interior and the Applicant is no longer a priest. The Respondent argues that the Board did not believe the government was after the Applicant in any case, and that the Applicant has not contested these findings of the Board.
[26] The Respondent submits that while the Applicant may have mentioned the threatening phone calls to his parents in his PIF, he did not mention the visit by the police that was in his father's sworn statement, and that it was reasonable for the Board to find this inconsistent. The Respondent cites Udeagbala, supra, as support for the argument that it is not patently unreasonable for the Board to find a claimant is not credible when there are discrepancies between his oral testimony and his PIF.
[27] The Respondent submits that the Board is entitled to give an opinion on whether it is consistent with subjective fear for the Applicant to wait until reaching Canada to claim asylum when he travelled through a safe country (the United States) to get there. The Respondent cites Ilie v. Minister of Citizenship and Immigration, (1994) 88 F.T.R. 220, [1994] F.C.J. No. 1758 [QL] andNatynczyk v. Canada (Minister of Citizenship and Immigration), 2004 FC 914, [2004] F.C.J. No. 1118 [QL], among other cases, to support the argument that while failure to claim elsewhere is not necessarily determinative, it is a factor to consider.
[28] The Respondent also submits that having found the evidence of the Applicant not to be credible, the Board was entitled to find that the documentary evidence produced by the Applicant did not go to prove the truth of his account. The Respondent argues that the Board, as an expert tribunal, has discretion to determine which evidence it finds valid. The Respondent cites the finding in Hossain v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 160 [QL] and Hamid v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1293 [QL], that since the onus of proof is on the claimant, where the claimant is found to be not credible, the claimant's documents can also be found not to be credible if no independent proof of their authenticity is provided.
[29] With regard to the validity of the medical certificate, the Respondent cites Bula v. Secretary of State, [1996] F.C.J. No. 876 (C.A.), Boateng v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 517 (C.A.) and Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.), to support the argument that a medical professional's opinion is not credible evidence if the facts upon which it is based are the same as those in the claimant's testimony that the Board has already found to be non-credible.
[30] The Respondent argues that in order for the evidence of the country conditions in Peru to be relevant, the claimant must prove the link between the persecuted groups in the evidence and his own situation in order to sustain a s. 96 or s. 97 claim, and that the Applicant in this case failed to do so. The Respondent cites Udeagbala, supra, in addition to Sheikh v. Minister of Employment and Immigration, (1990) 71 D.L.R. (4th) 604, [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (F.C.A.) and Singh v. Minister of Employment and Immigration, (1994) 79 F.T.R. 204, [1994] F.C.J. No. 613 (QL).
[31] Finally, the Respondent responds to the Applicant's note that the "Examen Initial du Dossier de la SPR" contained in the Tribunal Record (p. 87) does not have a check mark next to the "Credibilité" box. The Respondent states that credibility is an important issue that must be considered in any refugee case, and that the Applicant had an opportunity to raise this documentation issue at the hearing and did not do so.
ANALYSIS
[32] The first issue to be dealt with concerns the Applicant's passage through the United States on his way to Canada. Following the introduction of the Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004-217, (otherwise known as the "Safe Third Country Regulations"), I think I should provide some clarification as to the application of the jurisprudence upon this point. It is my understanding that as of December 29, 2004, claims made by those who arrive in Canada via the United States or other safe third country, will no longer be referred to the Refugee Protection Division, on the assumption that the United States or other safe third country is the appropriate first place for asylum to be sought.
[33] These regulations contain no language concerning retroactivity, so for the purposes of this case I will apply the jurisprudence that existed before the introduction of the Regulations, with the understanding that it will change at the point in the future when cases governed by the new Regulations make their way before this Court.
[34] The existing jurisprudence states, as the Respondent has demonstrated, that failure to claim in a safe third country may be considered by the Board in examining subjective fear. It was therefore open to the Board to consider this issue in the case of the Applicant. However, the case law has also established that the Board must consider whether an Applicant's explanation for not doing so is reasonable. (El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 185 (F.C.T.D.) [QL]) In the recent case of Ilyas v. Canada (Minister of Citizenship and Immigration), 2004 FC 1270, [2004] F.C.J. No. 1522 [QL], for example, Russell J. found that it was patently unreasonable of the Board to make a negative inference concerning a young Palestinian man's explanation that he arrived in the United States on September 11, 2001 and was afraid to claim there because he thought he would be viewed as a terrorist. The claimant in question stayed in the United States for only nine days.
[35] In the case before us, the Applicant was in the United States for the same amount of time - nine days - and he did provide an explanation as to why he did not wish to claim there. The Board stated that it rejected this explanation for the following reasons:
Comme explication, il a déclaré qu'il y avait une question de crise internationale dans ce pays et qu'il cherchait un pays de paix, tout en admettant la capacité des États-Unis de lui procurer la protection. Son comportement me paraît incompatible avec celui d'une personne qui dit craindre pour sa vie. En cette matière, la jurisprudence est constance qui indique [sic] qu'une personne qui dit craindre la persécution dans son pays doit profiter de la première occasion où il se trouve dans un pays ayant signé la Convention et/ou le Protocole, comme c'est le cas pour les États-Unis, pour solliciter sa protection, ce que le demandeur n'a pas fait. (p. 4 of the Decision)
[36] The Board's reasons contain an error of law on this point. The jurisprudence applicable to this case states that a negative inference can (and usually will) be drawn from the claimant's failure to claim in a safe third country, but it also clearly states that this failure cannot be a determinative factor in the Board's decision.
[37] It has frequently been found by this Court that a short stay in a safe third country en route is not necessarily considered a material enough sojourn to oblige the claimant to declare there on his or her way to Canada. This is particularly true of the United States, since many claimants must travel through it to get here. As Associate Chief Justice Lutfy (as he then was) affirmed in Gavryushenko, supra, neither the applicable case law nor the Convention states that the claimant must claim in a safe third country. While this may be the case for new claims as of December 29, 2004, it is not the case for this one.
[38] Since the Board provided no other reasons then an erroneous characterization of the law for disbelieving the Applicant's justification, I find that the Board has not fulfilled the requirement of carefully considering the Applicant's testimony on this point. The Applicant has portrayed himself as a dissident ex-priest from Latin America. Given his cultural background and previous social experiences, which as per El-Naem, supra, and R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162, must be considered in evaluating the claimant's credibility.
[39] The Board's decision was based on several other findings in addition to this one, however, so I will now examine the Board's findings concerning the Applicant's testimony and evidence, beginning with the medical certificate.
[40] There is some difficulty in analyzing the Board's decision on this point, since it makes no distinction between the rejection of the medical certificate itself as a fake document or the rejection of the medical certificate's probative value in light of its relation to the contents of the Applicant's testimony.
[41] The Applicant and the Respondent have correctly described the jurisprudence regarding the acceptance of medical certificates, although with some omissions. The cases of Gosal v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 346 and Unal v. Canada (Minister of Citizenship and Immigration), 2004 FC 518, [2004] F.C.J. No. 624 discuss the difference between subjective and objective medical evidence. The general rule is that while a diagnosis drawn from a claimant's account of facts already found not to be credible can be disregarded, a diagnosis drawn from independent observation of symptoms is not so easily set aside.
[42] In Unal, supra, Layden-Stevenson J. commented as follows:
The weighing of evidence is undeniably the function of the IRB. The board is not obliged to accept evidence, merely because it comes from an expert. However, if the IRB rejects evidence on an erroneous basis, in my view, it taints the ruling such that the decision may be affected. Here, the IRB erroneously concluded that the expert reports were prepared solely on the basis of information provided by Mr. Unal. That was not the case. (paras 9-10)
Layden-Stevenson J. found this to be a patently unreasonable error and sent the case back for re-determination.
[43] If the Board found the medical certificate to be a fake, this finding is within its expertise, but if the Board found the medical certificate to be irrelevant because it was based solely on the Applicant's narrative, this is an erroneous finding of fact. Here it is necessary to repeat exactly what the Board said concerning the medical certificate. The Board states at p. 4 of its decision:
Le demandeur a fourni un certain nombre de documents à l'appui de sa demande, dont particulièrement, un certificat médical (P-10). Cependant, il s'agit d'un document qui ne constitue pas un preuve qu'il a été agressé.
[44] The Applicant has correctly noted that the medical certificate contained independent observations of injuries consistent with an attack on the Applicant, whether or not it corroborated the Applicant's account of why the attack happened. The Board appears to have conflated the subjective and objective contents of the medical documentation, and the validity of the evidence with its relevance.
[45] Since this is all the Board has to say on this point, and it is factually incorrect, I must conclude that it has made a patently unreasonable finding of fact on this matter.
[46] The Board also appears to have made another erroneous finding of fact in asserting that the Applicant did not mention any threats to his parents after his departure to Canada, since the amendments to Q. 41 do refer to the threatening phone calls (p. 42 of the Tribunal Record), as the Applicant submits.
[47] The Board focused heavily in its determination on the fact that the Applicant referred to "abuse" in his PIF narrative and did not specify that he was referring to an incident of sexual abuse until he testified before the hearing. I do not find that this reference is an inconsistency. The Applicant provided a two-page summary of his situation as an attachment to the PIF, and gave a general outline of his situation, in which he referred clearly, if in general terms, to the incidents he reported to his superiors:
J'ai pu remarquer la mauvaise administration économique des donations que venaient des différents endroits, des abus envers les jeunes de faible personalité, infidelité au vote de castité, l'abus d[sic] prêtre utilisant son autorité contre un seminariste.
[48] This narrative refers, if obliquely, both to sexual misbehaviour and to abuse of a specific priest. As an initial summary, it is serviceable and does not contradict anything that came out during the Applicant's testimony. The Applicant was asked to provide details about the financial issues and the abuse he witnessed, and he readily did so. The Board appears to have assumed that "abuse" did not refer to sexual abuse, even though there was no reason to suppose this; the Applicant consistently and repeatedly explained that the abusive incident referred to in his PIF was the sexual abuse that his friend confided in him about.
[49] The Board stated on this point, at p. 2 of its Decision:
Dans la même veine, il a déclaré, au cours de son témoignage, que le père Larran avait agressé un de ses amis séminariste, un fait qui ne figure pas dans son FRP. Il a prétendu, puisqu'il a parlé d'abus en général, qu'il croyait que cela incluait l'abus sexuel. Le tribunal rejette cette explication, qu'il croit avoir été inventée par le demandeur pour se tirer d'embarras.
[50] The Board provides no reason for rejecting the Applicant's explanation, and appears to find that he was contradicting himself when he told the Board that the abuse he was referring to in his PIF was an incident of sexual abuse solely because he did not put the word "sexual" in front of the word "abuse". Considering the Applicant is a Spanish-speaking ex-priest, I do not think it obvious that he would be aware of or inclined to make this distinction explicit in what is supposed to be a summary of pertinent facts. Moreover, he did not experience the sexual abuse himself, he got into political trouble for reporting that it happened to another.
[51] The Applicant has cited Chahal, supra, in his arguments on this point. The proposition for which Chahal stands was clarified in a later case not cited by the parties, Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194, [2002] F.C.J. No. 1611, where Kelen J. remarked at para 8:
The case at bar can be distinguished from Chahal, wherein Mr. Justice Denault held that the Board erred by dismissing a refugee claim because an applicant had failed to amend his PIF to include events that occurred after it was submitted. The events in Chahal involved other people and were "only indirectly related to his refugee claim based on the persecution he claimed to have suffered."
[52] In Chahal, Denault J. also dealt with the issue of a claimant's summary of his history in the PIF, at para 11 of the decision:
After a careful review of the record, I am of the opinion that the first omission the applicant supposedly made--not mentioning in his PIF that he had been detained and tortured for four days in 1997--is not an omission, because in his narrative in reply to Question 37 of his PIF (p. 22 of the applicant's record), he stated the following:
After five years, I decided to come back hoping things have changed. After four days the police came home. I was arrested and taken to local police station. There they interrogated and asked me where I lived for such a long time. I again told them the truth, however they did not believe me again.
Rather they alleged that I was linked to militants and had come to Punjab again to bring violence back. The police threatened me they will kill me, pushed me around and beat me, as well. [Emphasis added.]
In my view, under the circumstances, it was perverse for the panel to fault the applicant for such an omission when he had stated in his PIF that he had been detained and beaten.
[53] Denault J. overturned the Board's decision on the basis of this finding, and discussed the claimant's amendments to his PIF as well, noting that although the claimant experienced some incidents after the filing of his PIF, he was not obliged to file continual detailed amendments to keep up.
[54] In the case at bar, I do not think the Board's conclusion that the Applicant's PIF is at odds with his testimony on the abuse issue can be supported on the face of the facts. This renders the retroactivity argument concerning Udeagbala moot as far as this point is concerned - Udeagbala discusses "discrepancies" between the PIF and the testimony, and I find there is no discrepancy on the point concerning "abuse" and "sexual abuse".
[55] Considering the heavy weight given by the Board to this issue, and the additional errors of law and of fact already found in the Board's decision, I do not think it is necessary to delve further into the discussion in Udeagbala and Chahal or to resolve the retroactivity question in order to deal with the distinct issue of amendments to the PIF.
[56] The last issue I will deal with is the Board's statement that even if it did find the Applicant to be credible, his claim does not fall within the parameters of persecution. The Board states at p. 3 of its decision:
Cependant, même si ces faits étaient réels, il ne pourrait en aucune façon justifier une crainte bien fondée de persécution de la part du demandeur qui n'aurait fait que dénoncer des actes criminels commis par ces deux prêtres. Et, si ces derniers voudraient s'en prendre à lui, ce serait tout simplement par vengeance personnelle. Or, en l'espèce, la crainte d'une vengeance personnelle ne constitue pas une crainte de persécution.
[57] It is obviously within the Board's expertise to find whether or not a claim fits the definition of persecution, but in doing so, the Board cannot make a finding that is clearly unreasonable on its face. The Applicant submitted arguments about political persecution resulting from his revelation of several facts that interested parties would rather were not made public - misappropriation of funds by a senior priest, sexual abuse by a priest, and government influence on the contents of sermons preached by the priests.
[58] The Board placed great emphasis on the fact that Mr. Costas was no longer the Minister of the Interior, when the Applicant stated repeatedly that his challenges to the relationship between the government and the church had upset numerous officials of these institutions. It also found that since the Applicant is no longer a priest, the government can have no fear of what he would put into his sermons. The Applicant's claim is clearly not based on anything he threatened to put into a sermon or on some sort of personal persecution by Mr. Costas, it is based on danger to his person resulting from his alleged knowledge of some politically explosive secrets that could affect both the Order of St. Augustine and the Ministry of the Interior, and the relationship between them.
[59] The Board may or may not find that these claims fit within the definition of persecution, but to define them as a case of "vengeance personnelle", a characterization that was never put before the Applicant in the hearing and was not mentioned by him in his submissions either, is to so misapprehend the nature of the Applicant's claim that the Board's finding cannot stand.
[60] Because of my finding, I believe I do not need, at this time, to discuss the questions of section 97, need of protection. This issue may have to be determined at a later time, depending on the result of the finding of a new hearing before another Board.
[61] The decision of the Board dated February 6, 2004 is quashed. This matter is to be returned for a new hearing before another Board.
[62] The Respondent is given seven days from today's date to submit a question for certification and if submitted, the Applicant will have seven days to reply.
"Max M. Teitelbaum"
J.F.C.
Ottawa, Ontario
January 27, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1837-04
STYLE OF CAUSE: ALBERTO LUIS CALDERON MENDEZ
- and -
LE MINISTRE DE LA CITOYENNETE
ET DE L'IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: November 1, 2004
REASONS FOR ORDER OF TEITELBAUM J.
APPEARANCES:
Michel LeBrun
POUR DEMANDEUR
Daniel Latulippe
POUR DÉFENDEUR
SOLICITORS OF RECORD:
Michel LeBrun
Montréal, Québec
POUR DEMANDEUR
John H. Sims, Q.C.
Deputy Attorney General of Canada
POUR DÉFENDEUR