Ottawa, Ontario, March 31, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
SILVIA LIDUVINA BENAVIDES APARICIO
SILVIA CAMILA ZAVALETA BENAVIDES
and
AND IMMIGRATION
REASONS FOR JUDGMENT ANDJUDGMENT
[1] In 2001, Ms. Silvia Liduvina Benavides Aparicio and her daughter came to Canada from El Salvadorseeking refugee protection. Ms. Benavides Aparicio alleged that they had fled their country because they had been threatened by persons who were trying to dissuade her husband, Manuel, a prominent human rights lawyer, from pursuing his efforts to improve the human rights situation in El Salvador.
[2] A panel of the Immigration and Refuge Board dismissed Ms. Benavides Aparicio's claim. It concluded that Manuel's behaviour was not consistent with a subjective fear of persecution and, therefore, it disbelieved Ms. Benavides Aparicio's assertion that she and her daughter were in serious danger. She argues that the Board made numerous errors and treated her unfairly during the hearing. She asks for a new hearing before a different panel of the Board. I agree that the Board's decision should be overturned and must, therefore, allow this application for judicial review.
I. Issues
[3] Ms. Benavides Aparicio raised several issues that appeared to have some merit. However, the principal argument was that the Board did not analyze adequately the evidence supporting her claim. Given that I am satisfied that the Board's decision must be overturned on this basis, I need not address the other issues.
II. Analysis
[4] I can overturn the Board's decision only if I find that it was out of keeping with the evidence before it.
[5] The Board gave the following reasons for dismissing Ms. Benavides Aparicio's claim that she and her daughter were in danger in El Salvador:
· her husband, Manuel, is still living at the same address in El Salvador; and
· Manuel decided to stay in El Salvador until his wife and daughter were settled in Canada, rather than flee the country with them.
[6] Based on this evidence, the Board concluded that Manuel was not in any danger in El Salvador and, therefore, neither were Ms. Benavides Aparicio or her daughter. It appears that the Board dealt with this refugee claim as if it were Manuel, not Ms. Benavides Aparicio and her daughter, who had presented it. The facts cited by the Board might have provided a foundation for rejecting Manuel's request for refugee protection, had he made one. However, there were other facts relevant to Ms. Benavides Aparicio's claim that the Board did not consider. This was not a situation where one spouse's claim was entirely dependent on the other. Ms. Benavides Aparicio presented the Board with evidence showing that she and her daughter were in particular danger because some persons might try to harm them as a means of pressuring Manuel. This was a separate threat from the risk that Manuel himself ran by continuing to pursue his human rights goals.
[7] Manuel stated in an affidavit (the Board refused to allow him to testify by teleconference) that he wished to continue to advance human rights in El Salvador, but planned to join his wife and daughter in Canada once they became established here. He said it would serve no purpose for him to try to hide because he would surely be found anyway. An expert witness, a person whom Manuel had represented and who subsequently gained refugee protection in Canada, confirmed Manuel's evidence in this respect. This witness also stated that the interests of Manuel's opponents would not necessarily be advanced by his death. It would be more effective to threaten or harm his family.
[8] The Board did not refer to the evidence supporting Ms. Benavides Aparicio's claim that she and her daughter were especially at risk as members of Manuel's family. As this evidence was central to their claim, I am not satisfied that the Board's decision was in keeping with the evidence before it. Accordingly, I must allow this application for judicial review and order a new hearing before a different panel of the Board. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing, before a different panel of the Board, is ordered;
3. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3200-05
STYLEOF CAUSE: APARICIO v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 18, 2006
APPEARANCES:
| Ms. Patricia Wells
|
FOR THE APPLICANTS
|
| Ms. Vanita Goela
|
SOLICITORS OF RECORD:
| Ms. Patricia Wells Toronto, ON.
|
|
| John H. Sims, Q.C. Toronto, ON. |