Date: 19980917
Docket: IMM-3627-97
BETWEEN:
MARIO RENE ESTRADA SOLIS
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
WETSTON J.
[1] The claimant, a 28-year-old citizen of Guatemala, fears persecution on the grounds of his political opinion and membership in a particular social group (union leaders in Guatemala), should he be returned to Guatemala. In Guatemala, he was a member of the union STECSA, a large union representing all Coca-Cola workers in the country. In 1991, he was elected to a position on the union executive and in 1993 became a member of the Consultative Council, which dealt with issues between union and management. Beginning in 1994, during difficult negotiations on a new collective agreement, he was subjected to a series of intimidating actions, including detention by the local police. He decided not to claim refugee status through the Canadian Embassy in Guatemala due to the potential delay. He went to the U.S. and remained there for three months, but decided not to seek refuge there due to the low acceptance rate for Guatemalan asylum seekers in the U.S. He proceeded to Canada, where he made a refugee claim upon his arrival in March 1996.
[2] The Convention Refugee Determination Division of the Immigration and Refugee Board ["the Board"] determined that the claimant was not a Convention refugee. The Board was not satisfied that there was a reasonable chance that the claimant would be persecuted if he were to return to Guatemala. The Board reached an adverse finding on the claimant's credibility based on contradictions, embellishments, and implausibilities in his story. The Board was not convinced on the evidence that Guatemala was not able to protect him.
[3] The applicant submits that the Board erred in concluding his evidence was not credible. He disputes at least five findings of fact on which the Board based this conclusion, arguing that these findings are based on a misunderstanding of the evidence presented. The respondent argues that the Board's conclusions were reasonable, based upon the totality of the evidence, and that consequently the Board did not err in law. The respondent submits that a misapprehension of some of the evidence before a tribunal is not a reviewable error, provided that it does not affect the result: Hoque v. M.E.I. (A-988-90, May 9, 1994, F.C.A.).
[4] I find that the Board made four findings of fact which were either misconstrued or speculative. First, the applicant argued that the Board did not show a clear understanding of the applicant's explanation for not having approached the union for assistance. I agree. The applicant stated that he did not approach the union because of the egregious nature of the persecution he suffered at the hands of the police and because of fears for his family. He did not testify to the effect that the union would not assist members and leaders targeted by the company. The Board erred when it identified a contradiction in the applicant's testimony on this point.
[5] Second, the applicant argued that the Board erred in its conclusion that the applicant did not provide a 'reasonable explanation' for the fact that the applicant did not speak to his counsel about the threat from the police. The respondent argues that it was reasonable for the Board to find it implausible that a union activist would not seek legal advice in this situation, in particular when he had consulted a lawyer for advice before. I agree with the applicant. I find that the Board did not provide the applicant with adequate opportunity to explain why he did not alert Mr. Morenon on this matter.
[6] Third, the applicant argues that the Board's finding that it was implausible that the Coca-Cola company would repress union activists and workers again after the 1984 scandal was based on no evidence. The applicant argues that the Board ignored evidence before it in making this finding. The respondent submits that this finding was open to the Board on the evidence before it, including evidence on how labour relations and human rights are currently dealt with by institutions within the country. I find that, on the evidence before the Board, its findings regarding the company's behaviour were on balance speculative.
[7] Fourth, the applicant submits that the Board failed to understand Estrada's testimony regarding his fellow union leader Gutierrez when the Board found the applicant's testimony contradictory when compared to the applicant's PIF. The applicant contends that even if the applicant's testimony on this point contained an inconsistency on this point, that contradiction is minor and as such, not fatal to the applicant's claim. I find that the Board misunderstood the applicant's testimony on this point. There was no contradiction inherent in the applicant's testimony on this issue. He testified that although he did not know the exact nature of the threats received by Gutierrez, he did become aware that Gutierrez had left the country due to the threats, and he realized this when he received Gutierrez's request for a letter of reference.
[8] The respondent submits that where the tribunal makes a finding as to the credibility of a witness, the Court should be less inclined to interfere with the Refugee Division's findings because of the Division's ability to assess the witness in oral testimony before it: Kulwinder Singh Grewal v. M.E.I. (F.C.A., February 23, 1983, A-972-82). However, I find that the above errors could affect the result, and as such, this decision must be se set aside. Obviously, where a tribunal misunderstands or misapprehends the evidence of the applicant, its decision will be overturned: Zalzali v. Canada (M.E.I.)(F.C.A., no. A-382-90, April 30, 1991).
[9] The decision of the Board shall be set aside and returned to a newly constituted Board for rehearing and reconsideration.
Howard I. Wetston
Judge
Ottawa, Ontario
September 17, 1998