Ottawa, Ontario, January 6, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
CARLOS OTHMAR NAVARRETE MENJIVAR
MARIA ROSELIA SANTOS DE NAVARRETE
CHRISTIAN NAVARRETE SANTOS
STANLEY VLADIMIR NAVARRETE SANTOS
HERBERT OTHMAR NAVARRETE SANTOS
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, Carlos Navarrete Menjivar, his wife Maria Santos de Navarrete, and their sons Christian, Stanley and Herbert are citizens of El Salvador who claim status as Convention refugees and persons in need of protection. They seek review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") that dismissed their claim. For the reasons that follow, I have decided that their application should be allowed, and the decision of the Board be set aside.
THE APPLICANTS' CLAIM
[2] Mr. and Mrs. Navarrete Menjivar testified that in El Salvador they both worked for the Instituto Salvadoreño del Seguro Social ("ISSS"). Both later joined the Union of Workers of the Instituto Salvadoreño del Seguro Social ("STISS"). They participated in union activities such as "demonstrations, painting and gluing propaganda, and carrying placards with protest slogans against the government along the main streets and avenues of San Salvador".
[3] Although demonstrations against the government are technically protected by El Salvador's constitution, the adult applicants claim that in practice the government views such protests to be a serious offence. On September 5, 2002 the workers of the ISSS started the largest strike in the history of El Salvador to protest the privatization of health care. Mr. Navarrete Menjivar and Mrs. Santos de Navarrete became involved in this strike. In the course of public demonstrations the strikers took over some of the main streets in the city of San Salvador.
[4] Although the adult applicants describe the protests as being "peaceful", police groups arrived and began to use force against the protesters. The applicants claim that protestors were shot with rubber bullets, hit with billy clubs and sprayed with tear gas. Police disguised as protesters filmed the protestors. Mr. Navarrete Menjivar was fired from his job on October 30, 2002 (effective October 31, 2002) and Mrs. Santos de Navarrete was fired on March 31, 2003 (effective April 1, 2003). Both claim that they were fired as a result of their participation in the demonstrations. Despite their dismissal, they continued to demonstrate against the government.
[5] The adult applicants testified that on June 13, 2003at 9:00 p.m. the husband, wife and eldest son were watching television in their living room when someone knocked on their door. The son opened the door and five men, dressed in civilian clothing and armed with pistols, entered. One of the men pushed the son out of the way and struck his face with his pistol. The men demanded that the family hand over any weapons or propaganda. The applicants replied that they had none, and one of the men grabbed the wife, bent her arms behind her back and struck her in the face. The eldest son and the husband were beaten into unconsciousness. Later, the other sons returned home to find the husband, wife and eldest son bound and unconscious. Photographs of the wounds were included with the application. The day after the beating, the family received a telephone call in which a man told them that the incident was only a warning and that they would be killed next time.
[6] The applicants say that they did not inform the police about the incident or the telephone call because they were afraid that the five men were either police themselves or a paramilitary group in league with the police. They were afraid of being taken to jail if they reported the incident. They informed the union about what had happened and decided not to take part in demonstrations or other political activities. Attempts by the husband and wife to get their jobs back were unsuccessful.
[7] In January and February of 2004, members of the family became involved in assisting the left-wing Farabundo Marti Front for National Liberation in their bid for the presidential election. Again, members of the applicant family began to receive threats and warning calls. The adult applicants testified that the callers told them that they no longer had an escape route and that they were going to be killed. The first call came on the 19th or 20th of January; another came on the 31st of January. A friend had told them that there was a good chance the authorities in Canada would help the applicants by granting them refugee status. The family bought tickets to fly to New York, intending to go to Canada from there. They did not try to claim refugee status in the U.S. because they "didn't have confidence in the politics of the US".
[8] On February 14, 2004, the applicants left their home, staying with the mother of the female applicant for a few days before leaving the country. The family flew to New York and stayed there with friends for four or five days before coming to Canada. Upon arrival they claimed refugee status.
BOARD'S DECISION
[9] The Board found that the applicants were not Convention refugees, nor were they persons in need of protection. It also found that the applicants did not have a well-founded fear of persecution for a Convention ground in El Salvador and that there were no substantial grounds to believe that their removal to El Salvador would subject them personally to a danger of torture.
[10] In the Board's analysis of the documentary evidence, it dismissed a report that originated from a trade union, claiming that a report from a trade union was likely to be biased in favour of unions. The Board noted that the constitution of El Salvadorprovides workers with a right to form unions and associations; discrimination against unions was prohibited. While there was some evidence to indicate that "union leaders" were targeted, the Board found that Mr. Navarrete Menjivar was "just a rank and file union member" and hence less likely to be a target.
[11] The Board was unsympathetic to Mr. Navarrete Menjivar's description of the police actions at the civil demonstration. The Board expressed concerns that stones had been thrown at police at "a later event" and that such demonstrations "could lead to the destruction of property". The police, the Board reasoned, were simply enforcing the state's right "to protect itself from anarchy".
[12] The Board further found that it was unreasonable for the claimants not to seek redress for the June 13, 2003 assault. Even if they genuinely believed that the culprits were police, or in league with the police, the Board found that documentary evidence showed that the El Salvadorian government did prosecute and imprison 140 police officers in 2002. In addition, some 372 other police employees were fired and 520 were sanctioned for lesser infractions. The Board concluded on that basis that state protection was available to the claimant family had they chosen to seek it.
[13] The Board also found that the claimant family lacked credibility. Mr. Navarrete Menjivar appeared to waver on the question as to whether the police had asked the protesters to disperse. Later in his testimony, Mr. Navarrete Menjivar mentioned that he had heard about Canada from a friend named "Henry", but hesitated when asked Henry's last name. The Board found it to be unlikely that Henry could be an old friend if Mr. Navarrete Menjivar was not even sure of Henry's last name, and found it even more unlikely that his advice would be relied upon. The Board also found that the family's sojourn in the U.S. was inconsistent with a well-founded fear of persecution and was "more the actions of a person on vacation or in a state of planned and leisurely immigration". Lastly, the Board made an adverse credibility finding based upon the fact that the husband and wife stated that the reason for their dismissal from work, i.e. their involvement in the protests, was stated in their letters of dismissal when in fact there was no mention of this in the letters. The cumulative effect of these "inconsistencies, contradictions and exaggerations" led the Board to make a general finding of lack of credibility.
THE APPLICANTS' GROUNDS OF REVIEW
[14] The applicants raise the following grounds upon which they challenge the Board's decision:
- The Board erred in law in determining that they were not Convention refugees and persons in need of protection.
- The Board acted without jurisdiction, beyond its jurisdiction or refused to exercise its jurisdiction.
- The Board failed to observe a principal of natural justice, procedural fairness or other procedure which it was required by law to observe.
- The Board based its decision on an erroneous finding of fact made in a perverse or capricious manner without regard to the material before it.
- The Board acted in a manner that was contrary to law.
[15] The essence, however, of the applicants' concern is their assertion that the Board was biased. The Board is said to have evidenced such bias through the panel member's questioning of the applicants in a manner that demonstrated a strong and preconceived biased against union activity, the Board's use of pejorative language such as "mob" and "anarchy" to describe the actions of union members, the Board's cavalier disregard of a document prepared by the International Confederation of Free Trade Unions ("ICFTU") (a confederation of independent, democratic trade unions that has consultative status with the United Nations' Economic and Social Council and which cooperates closely with the International Labour Organization) and the sarcastic tone adopted by the presiding member.
CONSIDERATION OF THE BOARD'S DECISION
[16] The test at law for the existence of the reasonable apprehension of bias was described in the following terms by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at page 394:
[...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically―and having thought the matter through―conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [Underlining added]
[17] As a matter of law, a high threshold must be met in order to establish either bias or the apprehension of bias. See: R. v. S. (R.D.), [1997] 3 S.C.R. 484 at page 532; and Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 76.
[18] In view of that high evidentiary threshold, I have not been satisfied that the applicants have met the onus upon them to establish with sufficient evidence bias, or the reasonable perception thereof. That said, I acknowledge that reading a transcript often does not convey such things as the use of an offensive tone or sarcasm. In the present case, however, a reading of the transcript does give rise to other concerns with respect to the conduct of the hearing.
[19] Counsel for the Minister conceded that the testimony of the applicants was generally consistent with the documentary evidence. For example, the 2003 United States' Department of State ("DOS") Report in respect of El Salvador reported that:
The ISSS, an autonomous government institution funded by payroll taxes and mandatory employer contributions, provides health care to people employed in the formal sector. ISSS workers continued a strike, begun in September 2002, to pressure the Government to stop purchasing health-care-related services from private companies. From September through the end of 2002, dozens of strike leaders and their family members reported receiving phone calls threatening that harm would come to them if they did not cease their activities. The AG's office interviewed victims and attempted to trace the calls. In January, the AG's Office closed all cases based on lack of evidence. In April, the Legislative Assembly approved a reinstatement decree for ISSS and Ministry of Labor employees; however, in May President Flores announced that he would veto the decree. A new mediation committee composed of three center party leaders, working with the Government and the strikers, structured a short-term agreement, and in July, ISSS workers returned to their jobs.
[20] The ICFTU's Annual Survey in respect of El Salvador stated that:
In the course of the year, various members of the Health Union (STISS) were dismissed. Ricardo Monge, STISS General Secretary, received death threats against himself and his family. The public sector unions are regarded as a serious threat to the government's liberalisation agenda, since they are leading the battle against the privatisation of public services, against the FTA with Central America and the Plan Puebla Panamá, which will facilitate the implementation of the FTAA.
Many union leaders from the El Salvador Social Security Institute have been sanctioned, dismissed or detained since September 2002, as part of a large-scale persecution campaign against trade unionist opposed to privatising the health system. The government has promoted a smear campaign against workers, doctors and trade unions in the health sector, in order to justify the repression and privatisation. As early as February 2, the main offices of the largest hospital workers union in El Salvador were closed down within the El Salvador Social Security Institute where they were located. The STISS viewed this action as heralding the privatisation of public hospitals.
[21] Such report was not inconsistent to any significant extent with the United States DOS Report.
[22] Consistency with the documentary evidence does not, however, guarantee that the testimony of a claimant is truthful. Credibility remains an issue that must be carefully assessed by the Board. In turn, great deference is owed by this Court to the Board's credibility findings. They are to be reviewed on the most deferential standard of review: patent unreasonableness.
[23] Keeping in mind the deference owed to the Board, the following concerns arise.
[24] First, a key finding by the Board was that Mr. Navarrete Menjivar did not have a sufficient "profile" to be targeted. The Board relied upon the previously discredited ICFTU report to conclude that it was "union leaders" who were targeted, and because Mr. Navarrete Menjivar was not an officer of the union he lacked the required profile. However, the United States DOS Report observed that "dozens of strike leaders and their family members" reported being threatened. Missing from the Board's analysis was any consideration of whether the adult claimants' activities in the strike would have caused them to be perceived to be strike leaders. Also missing was any reference to the letter tendered in evidence, signed by Mr. Monge, the acknowledged leader of the strike, under the seal of the STISS, confirming the telephone threats that Mrs. Santos de Navarreta had received.
[25] Second, the Board's negative credibility finding was based upon a perceived inconsistency with respect to whether the police asked the demonstrators to disperse, the implausibility of someone recommending Canada when Mr. Navarrete Menjivar hesitated in recalling that person's last name, a four or five-day sojourn in the United States and an inconsistency with respect to the content of a letter of termination.
[26] The jurisprudence of this Court, and the Court of Appeal, cautions that where adverse credibility findings are based upon contradictions in the evidence, the inconsistencies must be sufficiently serious and concern matters that are of adequate relevance to justify the finding of incredibility. In the words of the Federal Court of Appeal in Djama v. Canada(Minister of Employment and Immigration), [1992] F.C.J. No. 531:
In our opinion, the members of the panel clearly exaggerated the import of a few apparent contradictions, hesitations or vague statements which they succeeded in detecting in the comments of the claimant, and they could not on that basis alone treat his testimony as a whole as being the testimony of a liar. It seems to us that their fixation on the details of what he stated to be his history caused them to forget the substance of the facts on which he based his claim.
Even if the panel was right to doubt some aspects of the circumstances which had led the claimant to leave his village and ultimately his country, there were facts in evidence, including irrefutable documentary evidence, which could provide support for his claims that there was a real danger that he might be subject to persecution in his country because of his nationality and the family and social group of which he is a member. The panel did not take any account of this evidence and completely ignored it.
[27] Much the same could, in my view, be said in this case.
[28] From almost the outset of the hearing the Board demonstrated a preoccupation with what, in my respectful view, were irrelevancies. For example, from pages 21 to 23 of the transcript the presiding member closely questioned Mr. Navarrete Menjivar about whether the demonstrators blocked traffic in the public streets on San Salvador. To illustrate:
PRESIDING MEMBER: So, did you inconvenience the right of travel of your fellow San Salvadorans?
CLAIMANT #1: I'm sorry, the right to travel? I don't understand.
PRESIDENT MEMBER: Certainly. If I'm driving my car down the street of San Salvador and you want to have a demonstration, do you have a right to stop me?
CLAIMANT #1: Well, during the protest we did that, sir.
PRESIDING MEMBER: Is that legal or illegal?
CLAIMANT #1: Well, we had no other option of being heard.
PRESIDING MEMBER: Well, I'm asking you your actions, not your options. Were your actions breaking a law?
CLAIMANT #1: Well, we were in a protest, but I don't know if I broke the law at that time.
PRESIDING MEMBER: Certainly. If I go to San Salvador and I get a bunch of my friends and I block a street, am I breaking the law?
CLAIMANT #1: No.
PRESIDING MEMBER: It's okay?
INTERPRETER: Did you say block or flock to the streets?
PRESIDING MEMBER: Block a street.
INTERPRETER: Sorry, I'm going to repeat that question.
CLAIMANT #1: Well, there is such a quantity of people, we're in the street ---
PRESIDING MEMBER: So, you're saying that ---
CLAIMANT #1: We're in the street because we have taken possession of the street. The traffic is simply diverted. There are other options.
PRESIDING MEMBER: How about the rights of the people that are in the cars that want to use that street, though? How do they apply to your logic?
CLAIMANT #1: They can look for another way out.
[29] In the Board's oral reasons, but not its final written reasons, the presiding member observed that "I personally have no sympathy for [the] anarchist". Later, the member questioned whether it was legal for people in the essential services sector to strike. I can see no relevance between these concerns and the veracity of the applicants' claim.
[30] Further, the member was quick to characterize evidence as being inconsistent. For example, at page 23 of the transcript the member asked Mr. Navarrete Menjivar if the police asked the demonstrators to leave or otherwise shouted instructions, and was told no. At page 24, when asked what technique the police used to break up the "mob", Mr. Navarrete Menjivar answered "Well, first, they surrounded us and they had us like that for long time, and they would say things to us and we would also say things back to them". The presiding member then said "[t]hat's what I asked you. What did the police say to you? You said nothing". Mr. Navarrete Menjivar then explained that the police said "[o]ffensive things more than anything". Some confusion in the evidence followed, but such confusion stemmed from the Board's mischaracterization of the testimony as being inconsistent. Mr. Navarrete Menjivar did not initially deny that the police spoke to demonstrators. He said they did not provide any instructions to the crowd. That evidence is not inconsistent with the exchange of insults.
[31] The Board exaggerated the importance of Mr. Navarrete Menjivar's initial statement that the letter of termination he received (and had tendered in evidence) set out his participation in union activities as the cause of his dismissal. The Board ignored his clarification, and Mrs. Santos de Navarrete's testimony, that the letter of termination simply confirmed their termination and that the real reason for termination was given orally. The Board did not consider the plausibility of a claimant embellishing his claim by mis-stating the content of a document already in evidence that spoke for itself.
[32] Similarly exaggerated was the significance of Mr. Navarrete Menjivar's hesitation over the last name of the person who recommended that the family come to Canada. The Board failed to consider the possibility that if a person really has been the victim of persecution or abuse by people in authority, it may well be natural to hesitate before revealing names to persons in authority.
[33] As for the family's "sojourn" in the United States, the applicants testified that they travelled to the United States because they had U.S. visas, that they stayed with friends in New York for four or five days and then left for Canada, as they originally planned, in order to claim refugee status. No claim was made in the U.S. because they "didn't have confidence in the politics of the U.S.". Refugee claimants are not obliged by the Convention to seek asylum in the first country they reach. Given the brief duration of the applicants' stay in the United States, their explanation for the stay, and their lawful status while in the United States, it was, in my view, patently unreasonable for the Board to impugn their credibility on this basis.
[34] A patently unreasonable decision is one that is so flawed that no amount of curial deference can justify letting it stand. See: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 52. In my view, given the inadequate analysis of the "profile" of the adult applicants, the Board's preoccupation with the irrelevant, its exaggeration of the importance of two inconsistencies (one more perceived than real) and one hesitation, and its unreasonable conclusion with respect to the applicants' subjective fear, no amount of curial deference justifies allowing the Board's general finding of lack of credibility to stand.
[35] This is not, however, dispositive of the application in view of the Board's further finding that had they sought it, adequate state protection existed in El Salvador for the applicants.
[36] As to the proper standard of review of that conclusion, in Muszynski v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1329, I wrote at paragraph 7 and 8:
7 In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada(Minister of Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40 at paragraph 38.
8 Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
[37] In the present case, the Board's finding on state protection, in its entirety, was as follows:
Documentary evidencebefore the Board, which is a report on criminality and state protection in El Salvador, dated July 3, 2003 tells us that the PNC, the National Civil Police of El Salvador, in its action or in the actions of some of the actions of some policemen, have been contrary to human rights.
This report does note that the state punishes its police for such misconduct and on page 2 of 5 it specifically states:
"Nevertheless the government did prosecute and put into prison 140 police officers in 2002 and the PNC fired 372 employees through ordinary disciplinary procedures, and sanctioned 520 others for lesser infractions".
Based upon the serious efforts of the Salvadorian government to punish police officers for misdeed, it is not reasonable that the claimants would not seek redress if they believed these people were police or in the other scenario, that they were ordinary criminals that had entered their house or people that had an adverse political opinion to the claimants. [footnote omitted, underlining added]
[38] The documentary evidence before the Board included the following. The 2003 United States' DOS report stated:
- Politically motivated killings were under investigation.
- The judiciary remained generally inefficient and hampered by corruption.
- The government did not adequately protect workers' rights to organize and bargain collectively.
- The Inspector General of the National Civilian Police (PNC) received allegations of police involvement in 57 killings. The Ombudsman for Human Rights ("PDDH") found PNC agents to be responsible for one unlawful killing, one attempted murder, and 17 cases of physical abuse.
- The PDDH received 16 complaints of attempted and/or completed unlawful killings by police during the year.
- Impunity from the country's civil and criminal laws continued, particularly for persons who were politically, economically or institutionally well-connected. Corruption in the judicial system contributed to impunity.
[39] The Immigration and Refugee Board's Country of Origin Research for El Salvador, dated July 3, 2003 noted:
- El Salvador is a "critical crime threat country."
- The ruling political party "has taken steps to weaken and break the [PDDH]" by passing a law [...] that would allow the "purging" of the office "without any objective evaluation mechanisms" and by cutting its budget in half.
[40] In the face of such evidence, the reasons of the Board were superficial in concluding that the prosecution of 140 police officers and the termination or disciplining of others established the presence of adequate state protection. Because the reasons of the Board did not adequately support its conclusion with respect to state protection, its conclusion in that regard was unreasonable.
[41] It follows that the application for judicial review will be allowed.
[42] In closing, in Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1617 my colleague Mr. Justice Kelen recently cautioned that haste may indicate that an applicant did not receive a fair hearing, and "[t]his may be compounded where the Board Member reads a 13-page decision at the end of the morning of the hearing". I wholly endorse this admonition and note that in the present case after hearing submissions the Board immediately launched into its reasons that, when reduced to writing, were just over 15 pages long.
[43] Counsel did not pose any question for certification and I agree that no question of general importance arises on this record.
ORDER
[44] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Board is hereby set aside.
2. The matter is remitted for redetermination by a differently constituted panel of the Board.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9660-04
STYLE OF CAUSE: CARLOS OTHMAR NAVARRETE MENJIVAR ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 29, 2005
APPEARANCES:
MICHAEL LOEBACH FOR THE APPLICANTS
MICHAEL BUTTERFIELD FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL LOEBACH FOR THE APPLICANTS
BARRISTER & SOLICITOR
LONDON, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA