Date: 19980508
Docket: IMM-1302-97
ENTRE :
CASTANEDA DE ALVAREZ GRACIELA
ALVAREZ MARQUEZ CARLOS MARCOS
ALVAREZ CASTENADA HAIDE FABIOLA
ALVAREZ CASTANEDA KARLA GISELA
Partie requérante
ET :
MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
Partie intimée
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a February 4, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter the Refugee Division] wherein the Refugee Division found that the applicants were not Convention Refugees.
FACTS
[2] The principal applicant, Carlos Marcos Alvarez Marquez, his wife and children are all Mexican citizens. The principal applicant alleges that he has a fear of persecution due to his political opinion while his wife and children base their fear upon familial ties with the principal applicant.
[3] The principal applicant is a computer technician who was named coordinator for the computer centre of the Parti d'action national (PAN) on January 3, 1994. In March 1994, he was named coordinator for the electoral campaign and was in charge of the distribution of propaganda. The principal applicant claims that he became the subject of constant surveillance. One night, the principal applicant was intercepted by two individuals who threatened him with death if he continued his activities. He complained to the police but was told that there was insufficient proof.
[4] On August 21, 1994, the day of the elections, while the principal applicant acted as party representative at a polling station, he witnessed the theft of ballot papers. One of his companions was beaten ferociously and later died when he attempted to stop the theft. The principal applicant and other colleagues were taken to an isolated place and beaten and told to stop their activities in their respective political parties. The applicant was released the next day and allegedly transported to hospital where he was treated for a day. When the principal applicant returned to his house, his wife told him that the judicial police had come to his home but she had refused to open the door. The applicant's wife stated that the police left, that is, that the police went back to their car and waited for approximately two hours and then left (see page 102 of Tribunal's dossier).
[5] On June 30, 1995, the principal applicant was intercepted by two judicial police officers and beaten after a demonstration in favour of Chiapas. He was released after three hours on the condition that he would furnish information about the party's strategy. At the hearing, the principal applicant stated that they were interested in government fraud with regard to privatization of the public service. When the Refugee Division noted that government misappropriation of funds had already been denounced by the media, the applicant responded that the Mexican press was manipulated and told lies.
[6] As a result of this latest incident, the applicant and his family decided to leave Mexico and sought refugee status in Canada in August 1995.
[7] The Refugee Division held that the applicants were not credible and did not have a reasonable fear of persecution. The Refugee Division believed that the principal applicant was involved in PAN but was not convinced that the principal applicant had access to privileged information. The Refugee Division noted that information about government fraud was internationally known.
[8] The Refugee Division held that it was possible that the principal applicant was harassed during the elections but that these were isolated incidents. In addition, the Refugee Division doubted that the incident described by the principal applicant's wife had occurred, since it found it difficult to believe that the judicial police were content to leave when she refused to open the door.
SUBMISSIONS
1. The Applicants' Submissions
[9] The applicants submit that the Refugee Division erred in law in its interpretation of the facts. The applicants submit that the acts upon which their fear of persecution is based were not isolated incidents. The applicants argue that the Refugee Division did not take account of all the facts which reasonably permit a finding of fear of persecution. These alleged facts include: constant surveillance, threats of death, illegal confinement, violence and imprisonment, the assassination of the principal applicant's companion, hospitalization, harassment by the judicial police and intimidation.
[10] The applicants submit that there is no concrete proof that the applicants were not truthful or that the principal applicant was not credible. With regard to the incident where the police visited the applicant's home, the applicants submit that the Tribunal failed to appreciate the evidence submitted by the wife of the principal applicant.
[11] The applicants cite the decision in Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.) for the proposition that testimony will be considered true unless there is evidence to the contrary. The applicants submit that this principle was not respected by the Refugee Division. Moreover, the applicants submit that the Refugee Division failed to give reasons with regard to the credibility of the principal applicant's wife in clear and unequivocal terms as they submit is required by Hilo v. Canada (M.E.I.) (1991) 15 Imm.L.R. (2d) 199 (F.C.A.).
2. The Respondent's Submissions
[12] The respondent submits that the Refugee Division's conclusion that the applicant had not proven that he had access to privileged information was reasonable. The respondent argues that information about government fraud was well-known and had been denounced by the media. Therefore, it was unreasonable that the police would release the applicant under the condition that he would supply such information. The respondent notes that the Refugee Division rejected the applicant's explanation that the Mexican media was manipulated and spread lies because the documentary proof showed that government fraud was known and covered in the media. The respondent submits that the Refugee Division was free to find that the principal applicant lacked credibility due to the incompatibility between his story and the documentary proof.
[13] The respondent submits that it is up to the Refugee Division to consider the credibility of the proof before it and draw conclusions based on it. In the absence of evidence that this assessment was unreasonable, the respondent submits that the court's intervention is not justified (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). The respondent also cites the decision in Oduro v. Canada (M.E.I.) (1993), 66 F.T.R. 106 where the court held that although it would not necessarily draw the same inferences as the Refugee Division, the court would not intervene because the Refugee Division's inferences were reasonable.
[14] Concerning the events during the electoral campaign, the respondent submits that the Refugee Division reasonably concluded that it was possible that the principal applicant was harassed but that these were isolated incidents. The respondent contends that these isolated events did not constitute a reasonable fear of persecution. The respondent cites the decision in Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398 (F.C.A.) where the court stated that it was for the Refugee Division to determine if such incidents were sufficiently serious to constitute persecution. In the absence of a manifestly unreasonable error, the respondent submits that the court should not interfere on review. Moreover, the respondent notes that the Refugee Division judged that the story of the incident involving the judicial police at the applicants' house was not credible.
[15] The respondent submits further that the Refugee Division did not err by failing to mention all of the alleged events. The respondent submits that there was no evidence that the principal applicant was constantly watched or that he was hospitalized after being beaten. Thus, the respondent argues that the Refugee Division did not err by failing to mention these alleged facts. Moreover, the respondent notes again that the Refugee Division did not believe that the applicant was harassed by the judicial police at his house. With respect to the other incidents, the respondent mentions that the Refugee Division agreed that the applicant may have suffered harassment but that it did not amount to persecution. Thus, the respondent submits that the two events mentioned by the applicant, which were separated by a seven month period, were insufficient for the Refugee Division to conclude that the applicant suffered persecution.
[16] With respect to the applicant's argument that the Refugee Division should presume the truth of the applicant's statement, the respondent submits that this presumption is not irrefutable. The respondent cites Maldonado, supra, where the court stated that it would accept that an applicant's story was true unless there were reasons to doubt its veracity. The respondent submits that there were sufficient reasons to reject the credibility of the applicant given the applicants' story of the incident involving the judicial police at their residence.
DISCUSSION
[17] I am concerned about the brevity of the decision and some of the conclusions of the Refugee Division.
[18] In the case of Sagharichi, supra, at page 399, it is stated:
| It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
[19] The Refugee Division based its conclusion on the perceived lack of credibility of the applicants. One finding that surely impacted on that conclusion was the principal applicant's testimony that he was asked to reveal information about government corruption. I am not convinced that the fact that the Mexican media had reported on government corruption in the sale of government owned businesses must mean that the individuals who threatened the principal applicant were not interested in his particular knowledge of that matter. The Refugee Division made further findings that the principal applicant did not have access to privileged information and that it was quite odd that the judicial police would freely leave the applicant's residence.
[20] The Board erred in its decision when it states, on page 1 under Résumé des Faits:
| Le jour des élections, le 21 août 1994, alors qu'il remplit ses fonctions de représentant du parti dans un bureau de scrutin, il est témoin du vol de bulletins de vote. Un de ses compagnons, en tentant de s'opposer à la chose, est battu férocement. Le demandeur apprend plus tard qu'il est décédé des suites de ses blessures. Quant au demandeur, il est conduit dans un endroit isolé et tabassé. De retour chez lui, sa femme lui apprend que des agents de la police judiciaire se sont présentés mais qu'elle a refusé de leur ouvrir. Quand on lui demande comment ils ont réagi à son refus, elle répond qu'ils sont repartis. |
[21] The Board erred when it said the evidence of the female applicant was that the police left upon being refused admittance to her home. She told them that the police went to their car and waited for at least two hours at the family residence. This fact led the Board to believe that the female applicant and her husband were not credible.
[22] Furthermore, the Board erred in its decision when it states that the male applicant did not have particular information regarding a possible fraud in a sale of a state-owned enterprise.
[23] On page 97 of the Dossier of the Tribunal, the following is said:
| Q. Le fait ... qu'est-ce que vous alliez rendre public? |
| R. Les malversations des fonds que le parti et le gouvernement ... |
| Q. Okay, donnez ... |
| R. ... avaient fait. |
| Q. ... donnez-moi un exemple de malversation que vous alliez dénoncer? |
| R. Par exemple, la ... la malversation des fonds en ... dans le sucre et ... et en ... c'est une compagnie de ... de sucre ... une sucrerie qui est la propriété de l'État. Cette compagnie, en termes d'administration, marchait bien. Mais lorsqu'il y a eu la privatisation, elles ont été vendues sans aucune raison ou justification, ... (inaudible) ... des gens qui appartenaient à l'administration publique, des gens qui étaient dans la PRI, qui étaient ... qui étaient dans le... dans... dans le gouvernement. |
[24] The Board, in its decision states:
| Le demandeur a pu fournir suffisamment de détails sur sa formation politique pour que nous accordions foi à son implication politique au sein du PAN. Il n'a pu cependant nous convaincre qu'il avait accès à des informations privilégiées. Ses allégations sur les fraudes du gouvernement du PRI, en effet, sont connues internationalement. Des articles de journaux étrangers en ont fait largement état dont, entre autres, le Monde Diplomatique [chapitre 6 de la compilation déposée par l'agent d'audience]. |
[25] Clearly, the Board erred. The evidence given shows the applicant to have such privileged information.
[26] I could find nothing in the file to contradict what the applicant states in his evidence as found on page 97 of the Tribunal dossier.
CONCLUSION
[27] For the above reasons, I hereby quash the decision of the Board dated February 4, 1997 and return same for a new hearing before a differently constituted Tribunal.
[28] When asked, neither party wanted to submit a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
May 8, 1998