Date: 20000830
Docket: IMM-3809-99
BETWEEN:
JORGE MARIO GONZALEZ AGUIRRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant seeks judicial review of the decision, dated July 14, 1999, made by the Immigration and Refugee Board, Convention Refugee Determination Division (CRDD), in which it was determined that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act.1 Leave to commence this application for judicial review was granted on January 18, 2000.
Background
[2] The applicant, Jorge Mario Gonzalez Aguirre, is a 21 year old citizen of Guatemala. He arrived in Canada on March 17, 1998 and made a claim for Convention refugee status on April 7, 1998. He fears persecution at the hands of the Guatemalan army based on his perceived political opinion and membership in a particular social group, viz. his family.
[3] The applicant claims that his family's problems with the Guatemalan army date back to 1987, when his father was allegedly killed by the army because he provided food to guerillas and the army believed that he supported the guerilla forces.
[4] The applicant states, in his personal information form (PIF),2 that in 1992 his family moved from their village, Obraje, to Guatemala City in hopes of leaving behind their problems with the army. However, in 1993, his paternal uncle, Salvador, was kidnapped and murdered. The applicant claims that this was done by the army because they suspected his uncle was a guerilla. In May of 1995, a second paternal uncle, Carlos, was killed. The applicant believes this killing was motivated by the same reasons that spurred the killings of his father and his uncle Salvador.
[5] The applicant claims that his own problems with the army date from July 1996. He was driving home from work with his brother-in-law when an army vehicle came up beside them and demanded that they pull over. The applicant states that he was fearful so they sped away and were shot at by the army. He went home and saw army vehicles driving around his neighbourhood; he believes they were looking for him, but as they did not have his address, he was safe.
[6] I wonder how it is that when the applicant went home he saw army vehicles driving around his neighbourhood when, as he states, the army did not have his address and he was safe.
[7] The applicant claims that two armed men got out of a car and shot at his cousin in Obraje, and that this led his cousin to flee to the United States. In his PIF, he states that this event occurred in May 1997.3 However, in his testimony before the CRDD, he stated that the event occurred in May 1996.4 When shown the inconsistency, he explained that he could not remember the date because he was living in Guatemala City at that time.
[8] A further incident concerning the applicant occurred sometime in 1997. The applicant states that he ran into a friend at a supermarket. The friend warned him that the army had set up a roadblock and was stopping cars and asking the occupants for identification. The applicant states that because it was night and he was close to home, he left his car behind and went home on foot in order to avoid the army.
[9] In his PIF, he specifies the date of this incident as November 17, 1997.5 At the hearing before the CRDD, he testified that it occurred in July 1997, and he remembered the date because it was the birthday of a relative.6 However, when once again confronted with the discrepancy in dates, the applicant explained that he didn't remember the date, but that it was probably that of his brother-in-law's birthday.
[10] The applicant claimed that sometime in February 1998, neighbours told his family that they had seen army vehicles driving around as if they were looking for somebody. This led the applicant to leave Guatemala on February 20, 1998.
[11] The applicant testified that some three or four months prior to the hearing, a cousin had been kidnapped.
[12] Three of the applicant's brothers have been granted Convention refugee status in Canada, two in 1992 and one in 1995.
Tribunal's Decision
[13] The panel held that there was insufficient credible and trustworthy evidence on which it could rely to find that the applicant's fear is well-founded. The panel held that the applicant's account was so lacking in detail that it could not be relied upon. Instead, the panel chose to rely upon the documentary evidence:
| This evidence indicates the human rights situation in Guatemala "has barely improved". Extra-judicial killings are common, and charges that the military continue to act with impunity are made by several different reliable sources [footnote omitted]. However, the reports of killings which may be politically motivated involve persons of some prominence, such as women working with the Mayan organizations, Bishop Juan Gerardi and several political leaders. There are no reports in the documents from the claimant or the Refugee Claim Officer reporting the targeting of families of persons who were merely suspected of helping guerillas during the war. In fact, guerillas are being trained by United Nations sponsored programs to return to civilian occupations, and "...the former rebel National Guatemala Revolutionary Unity is in the final phase of the process of becoming a political party." [footnote omitted] The claimant testified that no one in his extended family was a guerilla, just that suspicion fell on all of them because of his father's actions in 1987. It is not credible or plausible that, given the slow but continuing return of refugees back to Guatemala and the inclusion of former guerillas in civilian politics, persons such as the claimant would be targeted for retribution by the military for acts occurring when he was only eight years old. The panel therefore concludes that there is no more than a mere possibility the claimant may suffer persecution on return to Guatemala.7 |
Issue
[14] Whether the CRDD failed to consider the totality of the evidence or misconstrued the evidence.
Applicant's Position
[15] The applicant submits that the CRDD disregarded the applicant's testimony regarding his family's history of persecution at the hands of the army. The applicant contends that the panel contradicts itself when it stated that the 1987 incident started a course of action by the military against the applicant's family. However, a proper reading of that part of the panel's reasons shows that it prefaces that statement with the qualification, " The claimant alleged...".
[16] The applicant also submits that the panel misconstrued the documentary evidence when it concluded that politically motivated killings are confined only to prominent people. The applicant argues that sources indicate such killings occur almost daily, and thus cannot therefore be limited only to a handful of prominent people. Violence against opponents of the military remains common, and thus argues the applicant, the panel's inference that because former guerillas are returning to civilian life they, and their supporters, are no longer targets is pure speculation.
Respondent's Position
[17] As a preliminary matter, the respondent points out that the applicant's affidavit contains documents referred to as exhibits, but neither marked as such nor signed by the person before whom the affidavit was sworn, as required by Rule 80(3) of the Federal Court Rules, 1998. Thus, they are not properly before the Court. As well, paragraphs 20 and 29 of the affidavit contain legal argument, and paragraph 22 contains opinion evidence rather than facts.
[18] Rule 80(3) states that where an affidavit refers to an exhibit, the exhibit shall be accurately identified by an endorsement on it or on an attached certificate and signed by the person before whom the affidavit was sworn. This was not done in this case, and accordingly, the documents referred to in the affidavit shall not be referred to as such. However, those documents are part of the certified Tribunal Record, so the applicant's error will not be to his detriment.
[19] The respondent's objection with regard to specific paragraphs within the applicant's affidavit is also valid and those paragraphs should not be considered; however, these paragraphs are repeated within the applicant's memorandum of fact and law, so again, it appears that the applicant is saved from drafting deficiencies.
[20] The respondent contends that the CRDD did not err in concluding that the applicant failed to establish that his fear was objectively well-founded. The applicant submitted two newspaper articles about his uncles' murders. The respondent submits that these articles do not show a connection between the killings and the 1987 murder of the applicant's father, which is alleged to have started a pattern of persecution.
[21] The respondent submits that the documentary evidence relied on by the panel does not support the applicant's contention that he is in a group at risk of persecution. The evidence does not show that the military is seeking out families of those who were perceived supporters of the guerillas during the civil war.
Analysis
[22] In Chan v. Canada (M.E.I.),8 the Supreme Court approved Heald J.A.'s comments, in Rajudeen v. Canada (M.E.I.),9 regarding what a refugee claimant had to do in order to establish his or her fear of persecution. There is, firstly, a finding of a subjective fear of persecution, which involves examining events from the claimant's perspective. Secondly, there is an objective component; the claimant's fear must be evaluated objectively so as to determine whether a valid basis for that fear exists. In Chan, Major J. stated:
| [T]he objective component of the test requires an examination of the "objective situation" and the relevant factors include the conditions in the applicant's country of origin and the laws of that country together with the manner in which they are applied.10 |
[23] In the instant case, the CRDD based its conclusion that the applicant lacks a well-founded fear of persecution not on the applicant's credibility or the story to which he testified, but rather on the documentary evidence adduced. The panel specifically stated that while it made no credibility finding with regard to the applicant's testimony, the panel found it so lacking in detail as to be insufficient to rely upon.
[24] The documentary evidence, according to the panel, indicated that former guerillas are now returning to positions in civilian life, and that while extra-judicial killings continue unabated, the applicant's situation does not fall within the reported categories of persons currently at risk. The killings, which may be politically motivated, appear to involve, according to the panel, persons of some prominence. The targets appear to be those who speak out advocating greater human rights and are politically active. Nothing in the documentary evidence suggests that anyone perceived to be a supporter, or connected to a supporter, of the former guerillas is at risk.
[25] With regard to the two articles concerning the applicant's uncles, the first article indicates that the murder was a strange incident and no one--including family--could point to a motive. The article suggests a connection with a group of bank robbers, who were dressed similarly to the alleged assassins. While the murder of the applicant's second uncle may have been politically motivated, nothing in the evidence shows how the applicant could be linked with his uncle such that he would be at risk himself.
[26] In his PIF and in his testimony before the CRDD, the applicant described in very little detail, and with conflicting dates, two incidents, one directly pertaining to him and the other indirect at best. The direct incident occurred sometime in 1996 and involved the army telling him to pull over, but not identifying him by name and indeed nothing in the applicant's story indicated that the army was aware of his identity. The second incident, which occurred in 1997, involved the applicant being told of a roadblock and his subsequent avoidance of the roadblock. Again, no evidence points to the army specifically looking for the applicant.
[27] Finally, the documentary evidence does not indicate that persons in the applicant's situation, viz. persons perceived to be guerilla supporters under the civil war, are at risk. The panel's conclusion that there is no more than a mere possibility that the claimant may suffer persecution in Guatemala appears to be properly based on the evidence before it.
[28] After reading the material in the Tribunal Record and after hearing the capable submissions of both counsel, I am satisfied that the Tribunal's decision is reasonable and based on all of the evidence before it, including the reports of Amnesty International.
[29] The application for judicial review is denied.
[30] Neither party submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
August 30, 2000
__________________1R.S.C. 1985, c. I-2 [hereinafter the Act].
8[1995] 3 S.C.R. 593 [hereinafter Chan].